Supplementary Agenda of Local Planning Panel meeting

LPP Report No. LPP13/25

Local Planning Panel

Date of Meeting: 28/05/2025

DA/33/2025 - DEMOLITION OF AWNING, CONVERSION OF PREMISES
TO MOTOR CAR SHOWROOM & SIGNAGE - 240-242 PENNANT HILLS ROAD, THORNLEIGH

DA No:	DA/33/2025 (PAN-504460 - Lodged on 5 February 2025)
Description:	Demolition of awning, conversion of premises to motor car showroom and erection of signage
Property:	Lot 14 DP 263535, No. 240-242 Pennant Hills Road, Thornleigh
Applicant:	Mr Peter Graham
Owner:	Mr Ian David Charles Creak
Estimated Value:	$1,217,000
Ward:	B Ward
Clause 4.6 Request:	Clause 4.4 Floor Space Ratio (Hornsby Local Environmental Plan 2013)
Submissions:	Nil
LPP Criteria:	Proposal contravenes a development standard by more than 10%
Author:	Charley Wells, A/Senior Town Planner
COI Declaration:	No Council staff involved in the assessment of this application have declared a Conflict of Interest.

RECOMMENDATION

A. THAT the Hornsby Shire Local Planning Panel, exercising the functions of Council as the consent authority, vary Clause 4.4 Floor Space Ratio 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.

B. THAT the Hornsby Local Planning Panel, exercising the functions of Council as the consent authority, approve Development Application No. DA/33/2025 for demolition of awning and addition to an existing car show room including use of premises as a vehicle sales and hire premises at Lot 14, DP 263535, No. 240-242 Pennant Hills Road, Thornleigh subject to the conditions of consent in Schedule 1 of LPP Report No. LPP13/25.

executive summary

· The application involves demolition of awning and an addition to an existing car show room including use of premises as a vehicle sale and hire premises and erection of signage.

· The applicant has made a submission in accordance with Clause 4.6 ‘Exceptions to development standards’ to contravene Clause 4.4 Floor Space Ratio of the Hornsby Local Environmental Plan 2013. The submission is considered well founded and is supported.

· Nil 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 contravenes a development standard by more than 10%.

· It is recommended that the application be approved.

BACKGROUND

On 16 February 2010, Council approved DA/1068/2009 for the demolition of an existing awning and change of use of an existing service station to a motor showroom. Whilst the use of the premises as a motor showroom commenced, the works associated with the approval have not been undertaken and neither a Construction Certificate nor Occupation Certificate has been issued.

On 14 March 2011, Council refused DA/52/2011 for the use of the existing landscaped front setback area of Nos. 2-10 Central Avenue for the display of motor vehicles for sale. In addition, the existing awning over the driveway at Nos. 240-242 Pennant Hills Road was proposed to be reconstructed with a glassed enclosure.

On 22 December 2014, Council approved DA/1237/2014 for the erection of four illuminated signs for an approved vehicle sales premises.

On 3 September 2015, Council approved DA/1237/2014/A to increase the height of the approved pylon signage to 8 metres, increase the size of three facia signs and the addition of one illuminated facia sign.

On 9 November 2023, Council provided pre lodgement advice under PL/70/2023.

SITE

The 768.5m² site has a frontage of 32.37m to Pennant Hills Road, a corner splay and a frontage of 15.925m to Parkes Street. Vehicular access is gained via a crossing fronting Parkes Street.

The site is occupied by an existing single storey building which is being used as a motor showroom. The building includes a large display area, amenities and glazed doors. There is an existing awning over the driveway and a pole sign located on the south eastern corner of the site.

The site experiences less than 1 metre of fall towards Parkes Street.

The site does not contain any easements or restrictions.

The site is not bushfire prone or flood prone.

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

PROPOSAL

The application proposes demolition of the existing awning, an addition to the existing motor car show room and associated works to establish six onsite car parking spaces and vehicle access ramp.

The application includes the use of the site as a vehicle sales and hire premises.

The proposed development incorporates two flush wall business identification signs.

No trees would 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

Part 5 of the Metropolis of Three Cities relates to ‘Productivity’ and a key objective is to grow and diversify local employment opportunities. The strategy notes that the retention and growth of existing and new commercial precincts is essential to grow jobs and Greater Sydney’s global competitiveness into the future.

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

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 E3 Productivity Support under the HLEP. The objectives of the E3 zone are:

· To provide a range of facilities and services, light industries, warehouses and offices.

· To provide for land uses that are compatible with, but do not compete with, land uses in surrounding local and commercial centres.

· To maintain the economic viability of local and commercial centres by limiting certain retail and commercial activity.

· To provide for land uses that meet the needs of the community, businesses and industries but that are not suited to locations in other employment zones.

· To provide opportunities for new and emerging light industries.

· To enable other land uses that provide facilities and services to meet the day to day needs of workers, to sell goods of a large size, weight or quantity or to sell goods manufactured on-site.

The proposed development is defined as ‘Vehicle sales or hire premises’ and is permissible in the E3 zone with Council’s consent. The proposal would meet the objectives of the E3 land zone.

2.1.2 Height of Buildings

Clause 4.3 of the HLEP provides that the height of a building on any land should not exceed the maximum height 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 5.46m and complies with this provision.

2.1.3 Floor Space Ratio

Clause 4.4 of the HLEP provides that the Floor Space Ratio (FSR) on the subject site should not exceed the maximum Floor Space Ratio of 0:5:1.

The gross floor area on the site would be 474m² which equates to a FSR of 0.62:1 which exceeds the maximum Floor Space Ratio of 0.5:1, resulting in a 24% variation. A discussion regarding the FSR development standard contravention is discussed below in Part 2.1.3 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 objectives of Clause 4.4 Floor Space Ratio are as follows:

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

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

2.1.4.1 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 Peter Graham, provides justification for the contravention of the FSR development standard by seeking to demonstrate that objectives of the development standard are achieved notwithstanding non-compliance with the standard, provided as follows:

· It is considered that the strict application of the FSR in these site-specific circumstances would not provide for a better outcome in terms of height and density controls. The building height is much lower than that allowable 10.5m and the low scale nature of the showrooms are entirely compatible with the character envisaged under Pennant Hills Road Thornleigh Precinct - Business Lands in terms of articulation, building separation, active frontages and landscaping.

· The building of a low scale provides a decent break to the extensive sheer vertical facades along Pennant Hills Road.

· The whole of the site is already used as a car sales yard. The development is only proposing to place more of the open area under a cover. The development intends to capitalise on the available floor area without cover. There will not be any more intensification as a result of the proposal. There is no other locality better than the current for its intended use.

Council notes that the objectives of Clause 4.4 of the HLEP are as follows:

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

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 4.4. In reaching this conclusion the following points are noted:

· The contravention would not be out of character when viewed from the public domain and would not result in amenity impacts to adjoining properties in terms of overshadowing, views or outlook. The proposal would not be inconsistent with existing development along Pennant Hills Road.

· It is noted that an increase in FSR would not generate additional infrastructure demand and does not amount to an overdevelopment of the site as the proposal would not intensify the existing use. It is considered that the development potential and infrastructure capacity of the locality are capable of accommodating a development of the kind proposed.

· The FSR is appropriate for the site and consistent with the productivity support zoning of the site and the objectives of the development standard are achieved.

For the reasons outlined above, it is considered that the written request to contravene the FSR adequately demonstrates that the objectives of the floor space ratio development standard contained within Clause 4.4 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:

· It is considered that the increased floor area will not detract from the existing or desired character of the locality when viewed in conjunction with other buildings.

· Any bulk or scale is further mediated through strong articulation using contemporary finishes.

· The additional floorspace is a result of an urban design response that would benefit the busy road with an additional building without having any impact to the surrounding locality.

· It would provide a much necessary outcome for the car sales yard by having the additional outdoor car yard converted into an indoor showroom providing better acoustics for customers and staff.

· The building of a low scale provides a decent break to the extensive sheer vertical facades along Pennant Hills Road.

· In the current case, the character of the locality varies widely. As seen below the site is at the corner of Parkes Street and of Pennant Hills Road an evidently busy intersection. The redevelopment of the site would have a much better visual outcome than the existing buildings on site.

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 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 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. This chapter 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.

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

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 (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.

Council’s records indicate that the site has previous potentially contaminating land uses, including the operation of a service station since the 1930’s and operation of a service station specialising in repair and replacement of motor vehicle exhaust systems (Certificate of Consent No. 120/85 dated 1 August 1985) between the early to mid-1980’s and circa 2008.

A Site Validation Report, prepared by Urban Environmental consultants Pty Ltd, dated 15 August 2008 (“the Site Validation Report”) was submitted to Council on 21 August 2008 documenting the results of ‘validation works undertaken following the excavation and removal of primary (underground storage tanks and fuel lines) and secondary (soil impact) hydrocarbon sources within the site’ between June and August 2008.

The Site Validation Report concluded ‘the site is considered suitable for ongoing commercial use.’

Council’s records indicate the site has been operated as a commercial premises for a vehicle sales/hire premises since 2008 and the current application proposes continuation of a commercial use at the premises.

However, the development proposal is likely to involve ground disturbance in areas of the site not investigated as part of the Site Validation process documented in the Site Validation Report.

Accordingly, there is a reasonable risk of hydrocarbon residues remaining in unexcavated soil on the site which poses a risk to workers during construction of the proposed development.

To ensure the risk is appropriately managed, a condition is recommended in Schedule 1 of this report requiring a site-specific unexpected finds protocol to be developed and submitted to Council prior to commencement of works.

Council’s environmental review of the submitted information raised no objection to the proposed development, subject to the recommended conditions of consent.

2.4 State Environmental Planning Policy (Transport and Infrastructure) 2021

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

2.4.1 Frontage to a Classified Road

The application is subject to assessment under Section 2.119 of the SEPP given the proposal has a frontage to a classified road being Pennant Hills Road.

Section 2.119(2) of the Policy states:

(2) The consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that:

(a) where practicable, vehicular access to the land is provided by a road other than the classified road, and

(b) the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of:

(i) the design of the vehicular access to the land, or

(ii) the emission of smoke or dust from the development, or

(iii) the nature, volume or frequency of vehicles using the classified road to gain access to the land, and

(c) the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road.

In regard to Section 2.119(2)(a), vehicle access to the site is facilitated via an entry to Parkes Street, which satisfies this requirement.

In regard to Section 2.119(2)(b), Council’s Traffic and Road Safety Team assessed the proposed design and raised no objections to the proposed application subject to the removal of redundant vehicle crossings on Pennant Hills Road.

Subject to these conditions, Council is satisfied that the safety, efficiency and operation of the classified road would not be adversely impacted by the proposal.

In regard to Section 2.118(2), the proposal would include removal of vehicle crossings on Pennant Hills Road and reconstruction of the footpath. Pennant Hills Road is determined to be a classified road by Transport for NSW (TfNSW). Therefore, the application was referred to TfNSW and a response was received on 26 March 2025 raising no objections as the proposed development as is not expected to have a significant impact on the classified road network. TfNSW acknowledges the requirements contained in the advice that was provided on a previous DA lodged on this land (DA/1068/2009) and advised that the condition requiring the installation of a concrete median island along Parkes Street is no longer required for the site. A condition of consent has been recommended requiring compliance with the TfNSW requirements.

2.5 State Environmental Planning Policy (Industry and Employment) 2021

The proposed signs have been assessed against the requirements of State Environmental Planning Policy (Industry and Employment) 2021. This policy provides state-wide planning controls for advertising signs and prevails over other environmental planning instruments including the HLEP and the HDCP.

The aims of the policy are to ensure that advertising and signage is compatible with the desired amenity and visual character of an area, to provide effective communication in suitable locations and to ensure signage is of high-quality design and finish. In accordance with Part 3, the proposed signage is defined as ‘business identification sign’ and the provisions of Part 3 of the policy apply.

Under Part 3.3 of the Industry and Employment SEPP, the proposed sign is defined as freestanding, business identification sign and requires Council’s assessment of the proposal to be undertaken with respect to the criteria in Schedule 5, which is provided below:

State Environmental Planning Policy (Industry and Employment) 2021
Control	Requirement	Comment
Schedule 5 – Assessment Criteria
Character of the area	Is the proposal compatible with the existing or desired future character of the area or locality in which it is proposed to be located?	The signage would be in keeping with the existing and desired future character of the area and is suitable for the site.
Character of the area	Is the proposal consistent with a particular theme for outdoor advertising in the area or locality?	The design of the signage is consistent with similar commercial centres and appropriate for the locality.
Special areas	Does the proposal detract from the amenity or visual quality of any environmentally sensitive areas, heritage areas, natural or other conservation areas, open space areas, waterways, rural landscapes or residential areas?	The proposal would not unduly impact on any surrounding land uses. The sign does not detract from the amenity or visual quality of environmentally sensitive areas. No tree removal is necessary to accommodate the signage.
Views and vistas	Does the proposal obscure or compromise important views?	No important views would be impacted.
	Does the proposal dominate the skyline and reduce the quality of vistas?	The proposal would not dominate the skyline or impact on vistas.
	Does the proposal respect the viewing rights of other advertisers?	The signage does not obscure any other advertising.
Streetscape, setting or landscape	Is the scale, proportion and form of the proposal appropriate for the streetscape, setting or landscape?	The scale, proportion and form are appropriate for the streetscape.
	Does the proposal contribute to the visual interest of the streetscape, setting or landscape?	The proposal is considered to contribute positively to the visual interest of the streetscape.
	Does the proposal reduce clutter by rationalising and simplifying existing advertising?	The proposed sign is designed to integrate with the building and would not contribute to clutter is the vicinity
	Does the proposal screen unsightliness?	The signage does not screen unsightliness.
	Does the proposal protrude above buildings, structures or tree canopies in the area or locality?	No
	Does the proposal require ongoing vegetation management?	No
Site and building	Is the proposal compatible with the scale, proportion and other characteristics of the site or building, or both, on which the proposed signage is to be located?	The signage is appropriately sized and respects the proportions of the site and nearby buildings.
	Does the proposal respect important features of the site or building, or both?	The signage is appropriate and would have a positive contribution to the site.
	Does the proposal show innovation and imagination in its relationship to the site or building, or both	The proposal is appropriate for the site and use.
Associated devices and logos	Have any safety devices, platforms, lighting devices or logos been designed as an integral part of the signage or structure on which it is to be displayed?	The signage would not have illumination.
Illumination	Would illumination result in unacceptable glare?	The proposed signage would not feature any internal illumination.
	Would illumination affect safety for pedestrians, vehicles or aircraft?	N/A
	Would illumination detract from the amenity of any residence or other form of accommodation?	N/A
	Can the intensity of the illumination be adjusted, if necessary?	N/A
	Is the illumination subject to a curfew?	N/A
Safety	Would the proposal reduce the safety for any public road?	The proposed signage would not reduce the safety of any public road.
	Would the proposal reduce the safety for pedestrians or bicyclists?	The proposed signage would not reduce the safety for pedestrians or cyclists.
	Would the proposal reduce the safety for pedestrians, particularly children, by obscuring sightlines from public areas?	The proposal would not reduce the safety for pedestrians.

The proposal satisfies the assessment criteria and is consistent with the objectives of the Industry and Employment SEPP.

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

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

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

2.7 Hornsby Development Control Plan 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 4 Business
Control	Proposal	Requirement	Complies
Site Area	768.5m²	N/A	N/A
Building Height	5.46m	10.5m	Yes
No. storeys	1	max. 2	Yes
Floor Space Ratio	0.62:1	0.5:1	No
Setbacks
Front	0.9m	10m	No
Side (North)	Unchanged	0m	N/A
Side (South)	Unchanged	0m	N/A
Rear	Unchanged	0m	N/A
Car Parking	6 spaces	6 spaces	Yes

HDCP - Part 1.3.2.11 Signage
Control	Requirement	Complies
Flush wall and painted wall signs
Should not extend laterally beyond the wall of the building to which it is attached.	The signage would be located on a recessed wall and would protrude beyond the wall.	Yes
Should be flush with the building.	Generally flush with the building	Yes
The total area of wall signs should not exceed 5m² unless it can be demonstrated that the sign is consistent with the character of the locality in accordance with the Industry and Employment SEPP.	Pennant Hills Road Sign = 16m²	No
	Parkes Street Sign =11m²	No
	Total Area = 37m²	No

As detailed in the above tables, 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.

2.7.1 Scale

With regards to the floor space ratio non-compliance, the application is supported by a submission pursuant to Clause 4.6 of the HLEP to contravene the floor space ratio development standard, which is discussed in detail under Section 2.1.2 and 2.1.4 of this report. The submission is considered well founded and is supported.

2.7.2 Setbacks

The desired outcome of Part 4.2.2 Setbacks of the HDCP are to encourage “Setbacks that complement the streetscape and establish a “pedestrian-friendly” scale for primary and secondary retail frontages” and “Setbacks that maintain the amenity of adjoining land uses.”

This is supported by the prescriptive measure set out in Figure 4.2-g Thornleigh Setbacks which prescribes a minimum 10m front boundary setback.

The application proposes a nil front boundary setback which does not comply with the 10m prescriptive measure.

In support of the encroachment, the following is noted:

· The proposal would maintain the existing nil setback of the awning and does not result in a change to the existing operation of the site.

· The proposal would enhance the streetscape by formalising the design with a modern structure.

· The proposal is consistent with the nil setback of the sites further south along Pennant Hills Road including the motor showroom located nearby at Nos. 252-256 Pennant Hills Road.

The proposal meets the desired outcomes of Part 4.2.2 Setbacks of the HDCP and is considered acceptable, subject to conditions.

2.7.3 Vehicle Access and Parking

The Desired Outcomes of Part 1C.2.1 Transport and Parking of HDCP are to encourage “development that manages transport demand around transit nodes to encourage public transport usage”, “car parking and bicycle facilities that meet the requirements of future occupants and their visitors” and “development with simple, safe and direct vehicular access.”

2.7.3.1 Car Parking

These desired outcomes are supported by prescriptive controls stipulating a car parking rate for vehicle sales or hire premise 1 space/ 150m² of site area. As such, the 768.5m²site would require a minimum of six car parking spaces.

The proposal includes the provision of six car parking spaces on site. Therefore, the proposal complies with the car parking requirement under Part 1C.2.1 Transport and Parking of the HDCP.

2.7.3.2 Vehicle Access and Traffic

Vehicular access to the site would remain unchanged with access provided to Parkes Street.

A Traffic Impact Statement (TIS) prepared by TRAFFIX Traffic and Transport Planners, dated 21 January 2025 accompanied the development application. The TIS confirms that vehicles can manoeuvre in and out of car parking spaces, and that cars can exit the site in a forward direction.

It is noted that the two vehicular crossings on Pennant Hills Road would be removed, and a footpath and new kerb would be constructed. The development application was referred to TfNSW pursuant to Clause 2.119 ‘Frontage to a Classified Road’ of the Transport and Infrastructure SEPP. TfNSW advised on 26 March 2025 that they have no objections to the proposal subject to a imposition of the recommended condition.

Council’s Traffic and Road Safety Team assessed the development application and confirmed that there are no objections on traffic and parking grounds subject to conditions of consent.

The proposal generally complies with the desired outcomes of Part 1C.2.1 Transport and Parking of HDCP and is considered acceptable.

2.7.4 Signage

The Desired Outcomes of Part 1.3.2.11 Signage are to encourage “Signage compatible with the character of the locality”, “Signage that complements the scale, size and architecture of the building or structure on which it is displayed” and “Signage that does not compromise pedestrian, cyclist or motorist safety”.

The proposed signage does not meet the prescriptive measure set out in Table 1.3.2-I Flush wall and painted wall signs that states: “The total area of wall signs should not exceed 5m² unless it can be demonstrated that the sign is consistent with the character of the locality in accordance with the Industry and Employment SEPP”.

It is noted that the total area of the wall signs would be 37m².

As identified in Part 2.5 of this report the proposed signage would generally meet the design guidelines of the Industry and Employment SEPP and would not compromise pedestrian, cyclist or motorist safety.

The proposal generally complies with the desired outcomes of 1.3.2.11 Signage of HDCP and is considered acceptable.

2.8 Section 7.11Contributions Plans

Hornsby Shire Council Section 7.11 Contributions Plan 2020-2030 applies to the development as it would result in an additional 198m2 gross floor area for commercial development. Accordingly, the requirement for a monetary Section 7.11 contribution is recommended as a condition of consent.

2.9 Housing and Productivity Contribution

The Housing and Productivity Contribution applies to the development as it would result in an additional 198m² gross floor area for commercial development. 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 proposal would not involve the removal of any trees.

3.1.2 Stormwater Management

The stormwater would be connected to the existing internal drainage system.

3.2 Built Environment

3.2.1 Built Form

The design has attempted to minimise the visual impact on the streetscape and adjoining properties by remaining single storey and comprising contemporary façade. The proposal would be consistent with the locality.

3.2.2 Traffic

The Traffic Impact Statement (TIS) prepared by TRAFFIX Traffic and Transport Planners, dated 21 January 2025 submitted with the proposal estimates that the proposed development would generate 5 vehicle trips per hour during the evening peak period. This anticipated traffic generation is considered to be a minor and would not adversely affect the local and surrounding road network.

Council’s Traffic and Road Safety Branch raised no objection on traffic and parking grounds subject to the recommended conditions of consent.

3.3 Social and Economic Impacts

The social and economic impacts of the development on the local and broader community have been considered with specific reference to the potential employment generation within the complex. The proposed development would result in a notable increase in the total retail floor space within the Pennant Hills Road Thornleigh Precinct.

There would be a number of multiplier effects that the development would provide throughout the local and regional economies. These multiplier effects would result from the sourcing of goods and services from suppliers to businesses within the complex as well as the increased consumption generated by the increase of employment in the area. The complex is likely to provide employment opportunities to younger age groups, which typically have higher unemployment rates within the region.

No substantial detrimental social or economic impacts are identified with respect to the proposed development.

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 18 February 2025 and 4 March 2025 in accordance with the Hornsby Community Engagement Plan. During this period, Council received nil submissions. The map below illustrates the location of those nearby landowners who were notified of the development.

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 Transport for NSW

The application was referred to TfNSW for concurrence in accordance with Section 138 of the Roads Act 1993. TfNSW acknowledges the requirements contained in the advice that was provided on a previous DA lodged on this land (DA/1068/2009) and advised that the condition requiring the installation of a concrete median island along Parkes Street is no longer required for the site.

TfNSW raised no objections as the proposed development as is not expected to have a significant impact on the classified road network, subject to conditions of consent.

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 demolition of an awning and addition to an existing car show room including use of premises as a vehicle sale and hire premises.

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:

· In accordance with Clause 4.6(4) of the Hornsby Local Environmental Plan 2013, Council is satisfied that 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.

· The proposed development will be in the public interest because it is consistent with the objectives of the of Clause 4.4 Floor Space Ratio development standard and the objectives for development within the zone in which the development is proposed to be carried out.

· The proposed development generally complies with the requirements of the relevant environmental planning instruments and the Hornsby Development Control Plan 2024.

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

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 Request
2.⇩	Architectural Plans
3.⇩	Signage Plan
4.⇩	Plan of Management

File Reference: DA/33/2025

Document Number: D09104769

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
DA-02, Rev A	Site & Roof Plan	Vmt architects	16/12/2024
DA-12, Rev A	Proposed Ground Floor Plan	Vmt architects	16/12/2024
DA-21, Rev A	Elevations	Vmt architects	16/12/2024
DA-31, Rev A	Sections	Vmt architects	16/12/2024
DA-51, Rev A	Proposed External Materials & Finishes	Vmt architects	16/12/2024
Sheet 1 of 1	Signage Detail Plan	P.S Graham & Assoc. Pty Ltd	4/09/2024
Sheet 1 of 1, Rev C	Erosion Sediment control Plan	P.S Graham & Assoc. Pty Ltd	7/04/2025

Supporting Documentation

Document Title	Prepared by	Dated	Council Reference
Plan of Management	P.S Graham & Assoc. Pty Ltd	7/04/2025	D09104114
Waste Management Plan	P.S Graham & Assoc. Pty Ltd	14/08/2024	D09051640
Traffic Impact Statement	TRAFFIX Traffic and Transport Planners	21/01/2025	D09051639

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

3. 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. Retaining Walls

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

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

4. Section 7.11 Development Contributions

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

Description	Contribution (4)
Roads	$20,775.40
Plan Preparation and Administration	$103.85
TOTAL	$20,879.25

being for increase in retail GFA of 198m².

2. The value of this contribution is current as at 1 May 2025. If the contribution is not paid within the financial quarter that this condition was generated, the contribution payable will be adjusted in accordance with the provisions of the Hornsby Shire Council Section 7.11 Development Contributions Plan and the amount payable will be calculated at the time of payment in the following manner:

$C_{PY =}$C_DC x CPI_PY

CPI_DC

Where:

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

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

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

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

3. The monetary contribution must be paid to Council:

a) Prior to the issue of the Subdivision Certificate where the development is for subdivision; or

b) Prior to the issue of the first Construction Certificate where the development is for building work; or

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

d) 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 Certifier to ensure that the monetary contributions have been paid to Council in accordance with the above timeframes

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

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

Note: To arrange a Payment Advice for the monetary contributions, please contact Council’s Customer Service Team on 9847 6666.

Reason: To ensure development contributions are paid to address the increased demand for community infrastructure resulting from the approved development.

5. Compliance with Other Department, Authority or Service Requirements

The development must be carried out in compliance with all recommendations and requirements, excluding general advice, within the following:

Other Department, Authority or Service	Document Title/ Ref	Dated	Council Reference
Transport for NSW (TfNSW)	TfNSW determination letter, SYD25/00276/01	26 March 2025	D09096493

(NOTE: For a copy of the above referenced document/s, please see the Application Enquiry System on Council’s website www.hornsby.nsw.gov.au)

Reason: To ensure the work is carried out in accordance with the determination and the statutory requirements of other departments, authorities or bodies.

6. Housing and Productivity Contribution

Before the issue of a construction 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)	$6,362.26
Total housing and productivity contribution	$6,362.26

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

7. Building Code of Australia

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

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

8. Sydney Water Building Plan Approval

The plans must be approved by Sydney Water prior to demolition, excavation or construction works commencing. This allows Sydney Water to determine if sewer, water or stormwater mains or easements will be affected by any part of your development. Any amendments to plans will require re-approval. Please go to Sydney Water Tap in® to apply.

Note: Sydney Water recommends developers apply for a Building Plan Approval early as to reduce unnecessary delays to further referrals or development timescales.

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

9. Fire Safety Schedule

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

Reason: To ensure all fire safety measures are identified to protect life and property.

10. Stormwater Drainage

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

1. Connected to the existing internal drainage system.

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

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

11. Internal Driveway/Vehicular Areas

The driveway and parking areas on site must be designed, and a Construction Certificate issued in accordance with Australian Standards AS2890.2, AS3727 and the following requirements:

1. The driveway be a rigid pavement.

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

Reason: To provide safe vehicle and pedestrian access.

12. Vehicular Crossing

A separate application under the Local Government Act 1993 and the Roads Act 1993 must be submitted to Council for the installation of a new vehicular crossing and the removal of the redundant crossing if the existing crossing is damaged during construction on the side of Parks Street. The vehicular crossing must be constructed in accordance with AUS-SPEC Specifications (www.hornsby.nsw.gov.au/property/build/aus-spec-terms-and-conditions) and the following requirements:

1. Design levels at the front boundary shall be obtained from Council by lodging an “Application for Boundary Levels” to be incorporated in the driveway longitudinal sections.

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

3. The footway area must be restored by turfing.

4. The road shoulder adjacent to the crossing must be constructed, splayed at 45 degrees with a minimum pavement thickness 150mm DGB 20 and sealed with 25mm AC10.

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

Reason: To provide safe vehicle and pedestrian access.

BEFORE BUILDING WORK COMMENCES

Condition

13. 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).

14. Unexpected Finds Protocol

A site specific ‘Unexpected Finds Protocol’ is to be developed and submitted to Council. The Unexpected Finds Protocol must be made available for reference for all occupants and/or site workers in the event contamination is discovered, including asbestos.

Note: The Unexpected Finds Protocol 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 ensure that the land is suitable for its proposed use and poses no risk to the environment and human health.

15. Notice of Commencement for Demolition

At least one week before demolition work commences, written notice must be provided to council and the occupiers of neighbouring premises of the work commencing. The notice must include:

1. Name

2. Address

3. Contact telephone number

4. Licence type and license number of any demolition waste removal contractor and, if applicable, asbestos removal contractor

5. The contact telephone number of council and

6. The contact telephone number of SafeWork NSW (4921 2900)

Note: The written notice to Council can be sent to devmail@hornsby.nsw.gov.au.

Reason: To advise neighbours about the commencement of demolition work and provide contact details for enquiries.

16. Asbestos Removal Signage

Before demolition or remediation work commences involving the removal of asbestos, a standard commercially manufactured sign containing the words ‘DANGER: Asbestos removal in progress’ (measuring not less than 400mm x 300mm) must be erected in a prominent position at the entry point/s of the site and maintained for the entire duration of the removal of the asbestos.

Reason: To alert the public to any danger arising from the removal of asbestos.

17. 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.

18. 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.

19. Erosion and Sediment Control Measures

Install and maintain adequate sediment and erosion control measures for the duration of all works, until such a time that sediment, sediment laden water or any other material/substance can no longer migrate from the premises. The measures are to be installed and maintained in such a manner as to prevent sediment, sediment-laden water, or any other materials and substances migrating from the site onto neighbouring land, the roadway, waters and/or into the stormwater system, and in accordance with:

1. The publication Managing Urban Stormwater: Soils and Construction 2004 (4th edition) - ‘The Blue Book’.

2. Protection of the Environment Operations Act 1997; and

3. The approved plans.

Controls are to be monitored and adjusted where required throughout the works to ensure compliance with the above

Note: On the spot penalties may be issued for any non-compliance with this requirement without any further notification or warning. If you are unsure in how to achieve compliance with this condition during works, you may need to engage the services of a suitably qualified environmental, soil or geotechnical consultant to assist.

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

20. Garbage Receptacle

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

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

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

3. 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.

DURING BUILDING WORK

Condition

21. 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.

22. Demolition

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

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

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

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

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

23. Handling of Asbestos

While demolition or remediation work is being carried out, any work involving the removal of asbestos must comply with the following requirements:

1. Only an asbestos removal contractor who holds the required class of Asbestos Licence issued by SafeWork NSW must carry out the removal, handling, and disposal of any asbestos material.

2. Asbestos waste in any form must be disposed of at a waste facility licensed by the NSW Environment Protection Authority to accept asbestos waste; and

3. Any asbestos waste load over 100kg (including asbestos contaminated soil) or 10m² or more of asbestos sheeting must be registered with the EPA on-line reporting tool WasteLocate.

Reason: To ensure that the removal of asbestos is undertaken safely and professionally.

24. 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.

25. Street Sweeping

1. During works (including remediation, demolition, earthworks and construction) and until exposed ground surfaces across the site have been stabilised, street sweeping must be undertaken following sediment tracking from the site.

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

Note: The above Item does not permit for sediment and/or any other materials/substances to exit the site in a way that constitutes water pollution as defined in the Protection of the Environment Operations Act 1997 or in a manner that contravenes other conditions in this consent. The directions under this condition, however, serve to prevent further water pollution from occurring.

Reason: To minimise impacts to the natural environment.

26. Council Property

To ensure that the public reserve is kept in a clean, tidy, and safe condition during remediation, demolition, excavation and construction works:

1. No building materials, skip bins, concrete pumps, cranes, machinery, temporary traffic control, signs or vehicles associated with the development shall be stored or placed on Council's footpath, nature strip, roadway, park or reserve without the prior approval being issued by Council under section 138 of the Roads Act 1993.

2. All work, loading and unloading associated with the development are to occur entirely within the property boundaries, unless otherwise approved by Council under section 138 of the Roads Act 1993.

Reason: To protect public land.

27. 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 Principal Certifier and Council (compliance@hornsby.nsw.gov.au).

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

28. De-watering of Excavated Sites

Water that accumulates within an excavation must be removed and disposed of in a manner that does not result in the pollution of waters, nuisance to neighbouring properties, or damage to neighbouring land and/or property.

Reason: To document the safe removal of water during work to protect the public and the surrounding environment.

29. Erosion and Sediment Control

1. Works are not to result in the discharge of sediment and or run-off onto the adjoining properties or public land.

2. The person having the benefit of this consent must ensure that sediment and other materials are not tracked onto the roadway by vehicles leaving the site.

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 neighbouring properties and public land.

30. Soil and Water Management (Stockpiles)

1. Stockpiles of topsoil, sand, aggregate, soil or other material shall be protected with adequate sediment controls and must not be located on any drainage line or easement, natural watercourse, footpath or roadway.

2. The storage of stockpiled topsoil, sand, aggregate, soil or other materials must not result in the discharge of sediment or run-off onto the adjoining properties or public land.

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

31. 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.

32. Survey Report

A report(s) must be prepared by a registered surveyor and submitted to the Principal Certifier:

1. Prior to the pouring of concrete at each level of the building certifying that:

a. The building, retaining walls and the like have been correctly positioned on the site; and

b. 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.

33. 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.

BEFORE ISSUE OF AN OCCUPATION CERTIFICATE

Condition

34. 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.

35. Construction of Engineering Works

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

Reason: To ensure engineering works are completed.

36. Fire Safety Statement – Final

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

Reason: To ensure all fire safety measures are implemented to protect life and property.

37. Asbestos Clearance Certificate

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

Reason: To ensure the appropriate removal and disposal of contaminated materials and the site is suitable for its approved use.

38. Submission of Excavated Material Tipping Dockets to Principal Certifier

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

Reason: To confirm appropriate disposal of excavated material.

39. Damage to Council Assets

Reason: To ensure public infrastructure and property is maintained.

40. 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.

OCCUPATION AND ONGOING USE

Condition

41. Fire Safety Statement - Annual

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

Reason: To ensure fire safety measures are maintained to protect life and property.

42. Use of Premises

1. The development approved under this consent shall be used for a vehicle sales and hires premises and not for any other purpose without Council’s separate written consent.

2. Vehicle repair, servicing, maintenance and washing must not be conducted on the premises.

3. No motor vehicle which is in the custody of the person carrying on the business is to be left standing on any public road or place.

4. All vehicles for sale must be driven to the site and not delivered by vehicle.

5. Sufficient supplies of appropriate absorbent materials and /or other spill clean-up equipment shall be kept on site to recover any liquid spillage. Liquid spills shall be cleaned up using dry methods only.

Reason: To ensure the use is undertaken within the terms of this consent and protect local amenity and the environment.

43. Noise and Vibration

The ongoing use of the premises including any plant or equipment installed on the premises must not cause:

1. The emission of noise that exceeds the background noise level by more than 5dBA when measured at, or computed for, the most affected point, on or within the boundary of the most affected receiver. Modifying factor corrections must be applied for tonal, impulsive, low frequency or intermittent noise in accordance with the Noise Policy for Industry 2017.

2. An internal noise level in any adjoining occupancy that exceeds the recommended design sound levels specified in Australian/New Zealand Standard AS/NZS 2107:2000 Acoustics - Recommended design sound levels and reverberation times for building interiors.

Reason: To protect the acoustic amenity of the local area.

44. Hours of Operation

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

Monday to Saturday 7:30am to 6 pm

Sunday & Public Holidays No work

Reason: To protect the amenity of the local area.

45. Compliance with Plan of Management

All control measures and procedures nominated in the Plan of Management, prepared by PS Graham & Associates Pty Ltd, dated 7 April 2025, must be implemented.

Reason: To ensure the operational measures implemented protect the amenity of the local area.

- END OF CONDITIONS -

LPP Report No. LPP15/25

Local Planning Panel

Date of Meeting: 28/05/2025

DA/838/2021/A - SECTION 4.55(2) APPLICATION TO AMEND OPERATIONAL HOURS OF AN APPROVED CHILDCARE - 43 EDWARD BENNETT DRIVE, CHERRYBROOK

DA No:	DA/ 838/2021/A - PAN-506275 (Lodged on 12 February 2025)
Description:	Section 4.55(2) application to amend the operational hours of an approved childcare centre
Property:	Lot 704 DP 260293, No. 43 Edward Bennett Drive, Cherrybrook
Applicant:	The Trustee for M & J Draybi Family Trust No.4
Owner:	M and J Draybi Holding No.4 Pty Ltd
Estimated Value:	Nil
Ward:	C Ward
Clause 4.6 Request:	N/A
Submissions:	2
LPP Criteria:	Amend condition of consent imposed by the panel
Author:	Katrina Maxwell, Senior Town Planner
COI Declaration:	No Council staff involved in the assessment of this application have declared a Conflict of Interest.

RECOMMENDATION

THAT the Hornsby Local Planning Panel, exercising the functions of Council as the consent authority, pursuant to Section 4.55 of the Environmental Planning and Assessment Act 1979, amend Development Application No. DA/838/2021 for demolition of an existing dwelling and erection of a purpose-built child care centre for 60 children including basement parking and landscaping at Lot 704 DP 260293, No.43 Edward Bennett Drive, Cherrybrook as detailed in Schedule 1 of LPP Report No. LPP15/25.

executive summary

· The application seeks to extend the hours of operation so that the childcare centre can open 30 mins earlier than previously approved, and to allow staff to arrive on site 15 mins before the centre opens.

· The proposal complies with the relevant environmental planning instruments.

· 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 a condition imposed by the panel is proposed to be amended.

· It is recommended that the application be approved.

application history

On 23 February 2022, the Hornsby Local Planning Panel approved Development Application No. DA/838/2021 for the demolition of an existing dwelling and the erection of a purpose-built childcare centre for 60 children including basement parking and landscaping.

The approved childcare centre is currently under construction pursuant to Construction Certificate No. CCP/98/2024 issued by Building Certifiers Pty Ltd, dated 11 April 2024.

SITE

The 946.3m² site is located on the corner of Edward Bennett Drive and Neale Avenue, Cherrybrook and contains a childcare centre currently under construction. The site experiences an average fall of 9% (3.5m) to the front, eastern corner.

The site is opposite Edward Bennett Oval Playground which includes playground features, a bike track, BBQ facilities and an oval. The immediate streetscape comprises of low-density residential development including a mixture of single and two storey dwelling houses. The site is screened by mature London Plane Street trees growing along the corner of Edward Bennett Drive and Neale Avenue.

The site is not bushfire prone and is not burdened by any easements or restrictions. The front south-east corner of the site is marginally affected by an overland flow path.

There are bus stops servicing the Transport for NSW ‘632’ and ‘642X’ bus routes located within 100m walking distance of the site connecting the site to locations including Rouse Hill, Castle Hill and Dural.

approved development

The approved development comprised demolition of an existing dwelling and the erection of a purpose-built childcare centre for 60 children including basement parking and landscaping.

The centre is approved to cater for a maximum of 60 children within the following age groups:

· 0-2 years 15 Children

· 2-3 years 15 Children

· 3-5 years 30 Children

The ground floor comprises a lift, entry, kitchen, laundry, storeroom, an indoor play area (2-3 years), nappy change and children’s toilet.

An outdoor play area is to be provided at the rear of the site for the 3-5 years old with a covered outdoor ‘transition’ play area. There was also to be an outdoor play area at the front for the 3-5 years old and 2-3 years old along the south-eastern side of the building which would comprise a combination of soft fall synthetic and natural grass.

The first floor is to comprise a staff room with kitchenette, office, lift, storeroom, bathroom for staff, an indoor area for 0-2 years old with a training toilet and nappy change room, cot room, and a simulated outdoor area located on the balcony.

The basement is to comprise 15 car parking spaces (including 1 disabled space), a lift and a bin storage room.

A pedestrian entry path is to be provided along the eastern, Neale Avenue side of the site.

The removal of 34 trees was approved to facilitate the development. Screen planting was proposed around the perimeter of the site comprising of a row of Lilly Pillies (Syzygium australe ‘Resillience’) reaching a mature height of 4.5m. A total of 163 trees and shrubs are be planted across the site, including three trees (Old Man Banksia and Red Bloodwood) with mature heights between 6m to 15m.

There is an existing 1.8m high solid boundary fence along the south-west and north-west elevation that would be retained. A 1.8m to 3.4m high acoustic fence was to be set in 1.2m from the site’s boundaries, surrounding the 2-3 years outdoor play area that is orientated to Edward Bennett Drive.

The approved operating hours of the child care centre are 7:30am to 6:00pm, Monday to Friday.

The centre would be staffed by a maximum of 10 educators, with staff commencing work at 7:15am. Parents are to arrive between the hours of 7:30am to 9:00am and pick-up is to occur on a staggered basis from 4:00pm until 6:00pm.

No signage was approved as part of this application.

PROPOSed modification

The Section 4.55(2) application seeks to modify the approved development as follows:

· Extend the hours of operation so that the childcare centre can open 30 mins earlier than previously approved, and to allow staff to arrive on site 15 mins before the centre opens. The centre would now open between 7:00am and 6:00pm Monday to Friday, with a maximum of two staff arriving between 6:45am and 7:00am.

The application proposes the following conditions to be modified:

· Condition 1 to be amended to reflect the amended acoustic report and plan of Management as supporting documents.

· Condition 64(a) to be amended to reflect the amended acoustic report.

· Condition 64(b) to be amended to reflect the amended air-conditioning curfew times.

· Condition 64(e) to be amended to reflect the amended carpark roller door curfew times.

· Condition 75 “Hours of Operation” to be required to be amended.

· Condition 79 to be amended to reflect the amended acoustic report.

· Condition 79(c) to be amended to reflect the amended plan of management.

· Condition 80(a) to be amended to reflect the amended acoustic report.

· Condition 80(b) to be amended to reflect the amended acoustic report.

ASSESSMENT

1. STRATEGIC CONTEXT

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

The Greater Sydney Region Plan - A Metropolis of Three Cities has been prepared by the NSW State Government to guide land use planning decisions 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 North District Plan includes priorities and actions for Northern District over the next 20 years.

Part 3 of the strategy relates to ‘Infrastructure and Collaboration’ and a key objective is to provide services and infrastructure to meet communities’ changing needs. Further, the strategy cites changing demographics will affect the types and distribution of services required in neighbourhoods.

Between 2016-2036, the number of infants aged 0-4 years is projected to increase by 85,000 and there are projected to be 333,000 more children and young people aged 5-19 years. The identified challenge for Hornsby Shire would be to provide additional infrastructure for students and young people.

The proposed childcare centre would be consistent with the objectives of the strategy by providing 60 child care places to support a growing population.

2. STATUTORY CONTROLS

2.1 Environmental Planning and Assessment Act 1979 - Section 4.55(2)

The proposal constitutes a modification under Section 4.55(2) of the Environmental Planning and Assessment Act 1979. Council pursuant to Section 4.55(2), Council may consider an application to amend development consent provided that, inter alia:

(a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if any at all), and

(b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 5) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and

(c) it has notified the application in accordance with–

(i) the regulations, if the regulations so require, or

(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

(d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be.”

Subsections (1) and (1A) do not apply to such a modification.

(3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified.

With respect to (a), it is considered that the proposal as amended is substantially the same as the development originally approved.

Section 4.55(2)(b) is not applicable as the development is not an integrated development or a State significant development. The original development application No. DA/838/2021 was not referred to any public agencies for comment.

With respect to (c) and (d), the amended application was notified, and two submissions were received.

In accordance with Section 4.55(3) the amended development complies with the requirements of the relevant environmental planning instruments, the Child Care Planning Guideline 2021 and the Hornsby Development Control Plan 2024.

The amended development does not create unreasonable environmental impacts to adjoining development with regard to visual bulk, overshadowing, solar access, amenity, privacy, noise, vegetation preservation, parking and/or traffic.

2.2 Hornsby Local Environmental Plan 2013

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

2.2.1 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 development is defined as a ‘centre-based child care facility’ and is permissible in the R2 zone with Council’s consent. The amended development would continue to provide facilities and services to meet the day to day needs of residents and would contribute to meeting the increasing demand for child care in the Hornsby Shire.

2.2.2 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. No changes are proposed to the built form of the approved development which has a maximum height of 7.9m and complies with this provision.

2.2.3 Heritage Conservation

2.3 State Environmental Planning Policy (Planning Systems) 2021

On 23 February 2022, DA/838/2021 was determined by the Hornsby Local Planning Panel as 10 or more unique submissions were received by way of objection.

During the LPP meeting for DA/838/2021, the Panel resolved to adopt the officer’s recommendation and approve the proposed development subject to the conditions of consent contained in Schedule 1 of the report and amend condition No. 79(c) relating to the Plan of Management and ongoing Noise Management requirements. The proposed modification to the hours of operation requires amendments to this condition with respect to the revised Plan of Management.

This Section 4.55(2) application has been referred to Hornsby Local Planning Panel (HLPP) for determination, due to proposed amendments to the wording of condition No. 79 Noise Management - Ongoing.

Local planning panels are to determine applications under section 4.55(2) of the Act for the modification of development consents granted by the panel that:

· Propose amendments to a condition of development consent recommended in the council assessment report but which was amended by the panel, or

· Propose amendments to a condition of development consent that was not included in the council assessment report, but which was added by the panel, or meet the criteria for development applications set out in the Schedules to this direction relating to conflict of interest, contentious development or departure from development standards.

There are no conflicts of interest associated with the approved Development Application or the current modification application. Whilst 36 public submissions were received in response to the original development application, only two public submissions were received in response to this Section 4.55(2) application. Therefore, this Section 4.55(2) has been referred to the HLPP due to the proposed amendment to a condition of development consent recommended in the council assessment report, which was amended by the Panel.

2.4 State Environmental Planning Policy (Educational Establishments and Childcare Facilities) 2017

At the time DA/838/2021 was approved, State Environmental Planning Policy (Educational Establishments and Childcare Facilities) 2017 had been repealed and superseded by State Environmental Planning Policy (Transport and Infrastructure) 2021. However, savings provisions that applied at the time DA/838/2021 was lodged meant that the original development application was assessed under State Environmental Planning Policy (Educational Establishments and Childcare Facilities) 2017. However, there are currently no savings provisions applicable in SEPP (Transport and Infrastructure) 2021. Therefore, this Section 4.55(2) application has been assessed under SEPP (Transport and Infrastructure) 2021 and the Child Care Planning Guideline (September 2021).

Child Care Planning Guideline- September 2021

Under the SEPP, the Child Care Planning Guideline is to be taken into consideration when undertaking a development for a centre based childcare facility. The planning guideline also takes precedence over a Development Control Plan, with some exceptions, where the two overlap in relation to a childcare facility.

Part 3.5 Visual and Acoustic Privacy & Part 3.6 Noise and Air Pollution

The objectives of Part 3.5 of the CCPG include minimising the impact of child care facilities on the acoustic privacy of neighbouring residential developments. The CCPG requires that a suitably qualified acoustic professional prepare an acoustic report which would identify an appropriate noise level for a child care facility located in residential and other zones.

The objectives of Part 3.6 of the CCPG include ensuring that outside noise levels of the facility are minimised to acceptable levels and to ensure air quality is acceptable where child care facilities are proposed. The CCPG stipulates that the location of child care facilities should be selected to avoid or minimise external sources of significant noise on the facility.

The assessment of the original development application No. DA/838/2021 determined that the location of the childcare centre was appropriate in the low-density residential context and the proposal was considered acceptable. The proposed extension of hours of operation would still be consistent with Parts 3.5 and 3.6 of the CCPG.

Section 2.9.2 of this report addresses the findings of the submitted noise impact report.

The amended proposal meets the objectives of Parts 3.5 and 3.6 of the CCPG and is considered acceptable.

3.7 Hours of operation

This Section 4.55(2) modification seeks an amendment to the development proposal in relation to the hours of operation, with an extension of operating hours by an additional 30 minutes in the morning, allowing the centre to operate from 7am.

Part 3.7 of the CCPG identifies the standard operating hours of childcare centres as being 7am- 7pm.

The hours of operation of child care facilities should not adversely impact the amenity of surrounding properties, particularly in residential areas. However, there is increasing demand for child care services outside the standard 7.00am to 7.00pm period as working hours become increasingly flexible for both shift and office workers. Hence there is a need to strike a balance between the needs of families and compatibility with the surrounding uses in an area.

Objective: To minimise the impact of the child care facility on the amenity of neighbouring residential developments.

C28 - Hours of operation where the predominant land use is residential should be confined to the core hours of 7.00am to 7.00pm weekdays. The hours of operation of the proposed child care facility may be extended if it adjoins or is adjacent to non-residential land uses.

The centre would now operate between 7:00am and 6:00pm Monday to Friday which is consistent with Clause 28 of the CCPG. While it is now proposed that staff would arrive on the site at 6:45am, this does not extend the hours of operation. This would enable the centre to be ready to receive children for the day from 7:00am meeting their legislative requirements for staff to child ratios. The timer on basement carpark door would restrict the door from opening prior to 6:45am. This would discourage staff from arriving to the site prior to 6:45am. As stipulated in the Plan of Management (dated 4 April 2025), access for parents and children would not be granted before 7:00am. This will be set out during the induction process.

The amended hours of operation comply with C28 of the CCPG and are considered acceptable.

2.5 State Environmental Planning Policy No. 55 Remediation of Land

At the time of lodgement of the original application (DA/838/2021), State Environmental Planning Policy No. 55 Remediation of Land was in force. This policy has since been repealed and superseded by State Environmental Planning Policy (Resilience and Hazards) 2021. The proposed modification would not alter the proposal’s compliance with either policy.

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

At the time of lodgement of the original application (DA/838/2021), State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 was in force. This policy has since been repealed and superseded by State Environmental Planning Policy (Biodiversity and Conservation) 2021. The proposed modification would not hinder compliance with either policy.

2.7 State Regional Environmental Planning Policy No. 20 - Hawkesbury Nepean River

At the time of lodgement of the original application (DA/838/2021), State Regional Environmental Planning Policy No. 20 Hawkesbury Nepean River was in force. This policy has since been repealed and superseded by State Environmental Planning Policy (Biodiversity and Conservation) 2021. The proposed modification would not hinder compliance with either policy.

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

2.9 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).

2.9.1 Part 7 Community Uses

The desired outcomes of Part 7.1.1 Site Requirements (Community Uses) of the HDCP are to encourage “community uses with a site area that contributes to the achievement of desired urban design outcomes” and “community uses located to be readily accessible to users, promote the health and safety of the future occupants of the facility and minimise potential land use conflicts”.

Land use conflicts as a result of the amended hours of operation would be minimised by amended conditions of consent which aim to mitigate acoustic impacts, including the implementation of an amended PoM.

There are no prescriptive controls regarding hours of operation of childcare centres under Part 7 Community of the HDCP. The amended proposal continues to comply with the desired outcomes of Part 7.1.1 Site Requirements (Community Uses) and is considered acceptable.

2.9.2 Noise and Vibration

The desired outcome of Part 1.3.2.5 Noise and Vibration of HDCP is “development designed and managed to minimise noise and vibration impacts on the occupants of residential dwellings and other noise sensitive land uses”: This desired outcome is supported by the prescriptive controls as follows:

· Development should be sited and designed so that noise is kept to a minimum and does not create offensive noise as defined by the Protection of the Environment Operations Act 1997.

· Noise generating developments should be accompanied by an acoustic report that demonstrates the development is sited and designed to:

o minimise the effect of noise and vibration on surrounding sensitive land uses, and

o comply with relevant State Government and Council guidelines.

· The location and design of noise generating activities, such as loading and unloading areas, garbage collection areas, driveways, parking areas, active recreation areas, air conditioning or mechanical plants, should be sited away from adjacent sensitive land uses and/or screened by walls or other acoustic treatments

· In addition to physical noise mitigation measures, noise impact management measures should be used to further limit potential noise impacts on sensitive land uses such as:

o scheduled times to undertake noise generating activities and/or use of noise generating machinery, and

o reasonable hours of operation including delivery hours.

An acoustic report prepared by Acoustic Dynamics dated 20 December 2024 was initially submitted with this Section 4.55(2) Application. However, Council reviewed this report and identified that it lacked information required for the assessment of the Section 4.55(2) application including noise modelling for staff vehicles entering the site and the operation of the basement garage door during the early morning shoulder period (prior to 7:00am). As such an amended acoustic report has been prepared by Acoustic Dynamics (dated 20 March 2025 ref 5109R003.LB.250320) in support of this Section 4.55(2) application.

During the early morning shoulder period (6:45am-7:00am) the arrival of two staff complies with the sleep disturbance criteria of L_Amax53 DBwhen measured from thenearest sensitive receptor at 3 Neale Avenue (the property closest to the basement garage door). As such, the risk of sleep disturbance would be deemed acceptable. There is an existing 1.8m fence along the common boundary of the subject site (driveway and basement garage) and the adjoining property at 3 Neal Ave which provides some acoustic privacy to the adjoining property. Further, the approved basement driveway ramp includes a maximum 2.4m masonry retaining wall and landscaping which would provide additional acoustic attenuation to the adjoining property.

The revised acoustic report assesses the calculated noise emission levels of the centre between 7:00am-6:00pm and includes indoor and outdoor play, arrival and egress of staff, children and guardians, car park movements and mechanical equipment. The amended proposal meets the required noise criteria for each category of noise generating activity between 7:00am and 6:00pm and accordingly, no further assessment is required. No additional architectural mitigation measures are required to control noise impacts during the proposed extended operating hours.

The acoustic report recommended that the Plan of Management be updated to require that:

· Staff vehicles can access the basement carpark between 6:45am and 7:00am and that staff should be made aware of their noise obligations and are to drive and conduct themselves in a manner that does not cause a disturbance to neighbours; and

· No deliveries to the site, no setting up equipment outside, no gardening or cleaning before 7:00am and after 6:00pm.

Further to the above, Condition 64 has been amended to require the basement carpark roller door, and the air conditioner condenser units be operated by a timer set to switch off between 6:00pm and 6:45am for the air conditioner condenser unit and 6:00pm and 7:00am for the basement car park roller door.

An amended Plan of Management (dated 4 April 2025) was prepared in support of this Section 4.55(2) and discussed further in Section 2.9.3 of this report.

This section 4.55(2) application was assessed by Council’s Environmental Protection Team who had no objections to the amended proposal subject to amended conditions of consent.

The amended proposal generally complies with the desired outcome of Part 1.3.2.5 Noise and Vibration of HDCP and is considered acceptable.

2.9.3 Plan Of Management

The NSW Land and Environment Court’s planning principles established in Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315 regarding the adequacy and appropriateness of a Plan of Management is assessed below.

· Do the requirements in the management plan relate to the proposed use and complement any conditions of approval?

· Do the requirements in the management plan require people to act in a manner that would be unlikely or unreasonable in the circumstances of the case?

· Can the source of any breaches of the management plan be readily identified to allow for any enforcement action?

· Do the requirements in the management plan require absolute compliance to achieve an acceptable outcome?

· Can the people the subject of the management plan be reasonably expected to know of its requirements?

· Is the management plan to be enforced as a condition of consent?

· Does the management plan contain complaint management procedures?

· Is there a procedure for updating and changing the management plan, including the advertising of any changes?

Initially the amended Plan of Management (PoM) submitted in support of this section 4.55(2) application included the provision of up to 6 after-hours activities/ events per year. These after-hour activities/ events were not proposed nor considered under the assessment of the original DA. An amended PoM was submitted dated 4 April 2025 to ensure consistency with the approved development, except where modified by this section 4.55(2) application. The only changes now under the amended PoM are the amendments to the morning operational hours. The amended Plan of Management now incorporates measures for ensuring parents are aware they should not arrive to the site before 7:00am and that the centre maintain regular, ongoing communication to parents of this requirement.

The amended PoM generally complies with the Land and Environment Court’s Planning Principle established in Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315 and is considered acceptable.

This Section 4.55(2) application was assessed by Council’s Environmental Protection Team who had no objections to the amended proposal subject to amended conditions of consent.

2.10 7.12 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. The approved development included the imposition of a condition of consent requiring the payment of a contribution in accordance with the Plan.

2.11 Housing and Productivity Contribution

The Housing and Productivity Contribution does not apply to the proposed modification.

3. ENVIRONMENTAL IMPACTS

3.1 Natural Environment

3.1.1 Tree and Vegetation Preservation

The proposed modification does not necessitate the removal of any additional trees from the site.

3.2 Built Environment

3.2.1 Built Form

No amendments are proposed to the approved built form of the child care centre.

3.2.2 Transport and Parking

No changes are proposed to the approved number of car parking spaces for the site.

3.3 Social Impacts

The proposed child care centre would make a positive social contribution to the local community by providing services for the needs of local residents. This is consistent with the State Government’s ‘A Metropolis of Three Cities’ which identifies the need to provide an additional 85,000 child care places by 2036.

3.4 Economic Impacts

The proposal would have a minor positive impact on the local economy by generating an increase in local employment opportunities.

4. SITE SUITABILITY

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

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 18 February 2025 and 11 March 2025 in accordance with the Hornsby Community Engagement Plan. During this period, Council received 2 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

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

· Need for child care centres in Cherrybrook.

· Increased noise.

· Sleep disturbance.

· Increased traffic.

· Impacts on quality of life.

The merits of the matters raised in community submissions have been addressed below.

5.1.1 The Necessity of the Proposal

One objection stated that most childcare centres in Cherrybrook operates from 7:30am in the morning. There is no reason that this centre is proposed to operate 30 mins earlier than other centres.

In Response: The Department of Planning, Industry and Environment “Childcare Planning Guideline” recognises the 7.00am-7.00pm period as the standard operation hours for childcare centres. It is not proposed to operate the childcare centre outside of these hours.

Nearby child care centres, Playdays West Pennant Hills and Guardian Childcare West Pennant Hills both operate from 7:00am. Each childcare centre is subject to its own development assessment including an assessment of the respective acoustic report.

5.1.2 Increased Noise

One objection claims that an earlier start to operations will likely result in increased noise levels during early morning hours. This disturbance would affect the surrounding residents' peaceful morning environment.

In Response: An amended Acoustic Report was prepared by Acoustic Dynamics (dated March 2025) in support of the amended hours of operation.

Between 6:45am and 7:00am, a maximum 2 staff members would arrive to the site. According to the amended PoM, between 7:00am-8:00am the centre (staff and children) would be engaged in settling in for early arrivals and individual work. These activities would occur indoor and would result in minimal noise generation. Existing conditions of consent require acoustic measures to be implemented for indoor areas. There would be no outdoor play or noisy activities during this time. An acoustic report was submitted supporting the change in the commencement of operational hours from 7:30am to 7:00am.

5.1.3 Sleep Disturbance

One objection asserts that there are a number of elderly people living in the vicinity of the subject site, who rely on adequate sleep. The proposed staff arrival time of 6:45am is too early and would impact their lives significantly.

In Response: An acoustic report was prepared by Acoustic Dynamics (dated March 2025) in support of the section 4.55(2) application. Given the minor occupation of the centre by a maximum of two staff members between 6:45am and 7am, the risk of sleep disturbance was deemed acceptable.

It is proposed that one to two staff would arrive prior to 7:00am to enable preparation for the children to arrive at 7am. This would generate 1-2 vehicle trips prior to 7:00am. This would be similar to the noise generated by a typical dwelling house. Staff would arrive and park in the basement car park before using the lift to enter the building. An amended condition of consent requires that a timer is installed on the carpark roller door to ensure the door remains locked between 6:00pm and 6:45am. This would prevent earlier entry into the centre. The air conditioning unit would not be permitted to be operated prior to 7:00am.

5.1.4 Quality of Life

One objection claims that this childcare is in a residential area which would impact residential living quality. Allowing an earlier operation hours for a commercial childcare service not only invites more vehicular traffic but may set a precedent for other commercial activities to encroach on the neighbourhood. The principle of peaceful enjoyment of one’s home is integral to community living. Altering the operational hours of a childcare facility in a residential area threatens the quality of life for many residents who value the tranquillity of our neighbourhood.

In Response: The amended proposal is unlikely to set a precedent for commercial development. Most forms of commercial development are prohibited in the R2 Low density residential zone. All development applications would be subject to individual development assessment. No additional children would be permitted to be enrolled at the childcare centre as a result of this Section 4.55(2) application and therefore there would be no increase in the number of vehicle trips to and from the childcare centre.

5.1.5 Increased Traffic

One objection states that the additional hours of operation would create extra traffic congestion on residential streets. Many parents drop off their children on their way to work, and an earlier opening may coincide with peak rush hour traffic, exacerbating safety concerns for pedestrians and adding to the wear and tear on local roads.

In Response: Allowing earlier opening hours would allow more flexibility for parents to stagger their drop offs thereby potentially reducing the number of vehicles arriving at the site concurrently. Parents would arrive between the hours of 7:00am to 9:00am.

A Traffic and Parking Impact Report was prepared by Motion Traffic Engineers (dated July 2021) in support of the original development application No. DA/838/2021. The AM peak traffic period was identified as being 8am to 9am. This means that vehicles accessing the site between 6:45am and 7:30am would not conflict with the AM peak traffic period. It was concluded in the Traffic and Parking Impact Report that the nearby intersection has spare capacity to the accommodate additional traffic generated by the childcare centre. No additional traffic movements are likely as a result of this Section 4.55(2). Therefore, there would be negligible impact on the local road network as a result of the amended development.

Pedestrian safety was addressed in the assessment of the original development application and the existing conditions of consent include a requirement for a pedestrian refuge in Neale Avenue near the intersection with Edward Bennett Drive, and footpath construction along the entire frontage of the site prior to issue of the Occupation Certificate. This requirement remains unchanged as result of this Section 4.55(2) application.

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 modification is considered to have satisfactorily addressed Council’s 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 modification would be in the public interest.

CONCLUSION

The Section 4.55(2) application proposes to extend the hours of operation of a childcare centre.

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 modification application is recommended.

The reasons for this decision are:

· The proposed modification complies with the requirements of the relevant environmental planning instruments, the Hornsby Development Control Plan 2024 and the Department of Planning, Industry and Environment “Childcare Planning Guideline .

· 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.⇩	Approved Plans
2.⇩	Acoustic Report
3.⇩	Plan of Management

File Reference: DA/838/2021/A

Document Number: D09135022

SCHEDULE 1

Date of this modification:
Details of this modification:	Extend Hours of Operation of Childcare Centre
Conditions Added:	Nil
Conditions Deleted:	Nil
Conditions Modified:	1, 64(a),64(b), 64(e), 75, 79, 79(c), 80(a), 80(b)

CONDITIONS OF APPROVAL

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

Approved Plans

Plan No.	Plan Title	Drawn by	Dated	Council Reference
DA00A, Rev A	Survey & Demolition Plan	Into Architecture	14/07/2021	D08358692
DA01I, Rev I	Site Plan	Into Architecture	25/10/2021	D08358692
DA02E, Rev E	Basement Level Plan	Into Architecture	25/10/2021	D08358692
DA03M, Rev M	Ground Floor Plan	Into Architecture	25/10/2021	D08358692
DA04G, Rev G	First Floor Plan	Into Architecture	25/10/2021	D08358692
DA05C, Rev C	Section A	Into Architecture	25/10/2021	D08358692
DA06D, Rev D	Section B	Into Architecture	25/10/2021	D08358692
DA07C, Rev D	Section D	Into Architecture	25/10/2021	D08358692
DA08F, Rev F	Elevation North & South	Into Architecture	25/10/2021	D08358692
DA09E, Rev E	Elevation East & West	Into Architecture	25/10/2021	D08358692
DA11D, Rev D	Colours and Materials	Into Architecture	25/10/2021	D08358692
DA19E, Rev E	Roof Plan	Into Architecture	25/10/2021	D08358692
DA20D, Rev D	Kitchen Layout & Bin Room	Into Architecture	25/10/2021	D08358692
DA22D, Rev D	Fence Details 1	Into Architecture	14/07/2021	D08358692
L/00 Issue D	Cover Sheet	atc Landscape Architects	15/06/2021	D08358692
L/01 Issue D	Proposed Landscape Plan	atc Landscape Architects	15/06/2021	D08358692

Supporting Documentation

Document Title	Prepared by	Dated	Council Reference
~~Plan of Management, ref: V2.1~~	~~Unknown~~	~~Oct 2021~~	~~D08284339~~
Plan of Management	Unknown	4/04/2025	D09132694
~~Noise Impact Assessment, Ref: 5109R001.LB.211029~~	~~Acoustic Dynamics~~	~~1/11/21~~	~~D08284341~~
Noise Impact Assessment ref:5109R003.LB.250320	Acoustic Dynamics	20/03/2025	D09102722
Construction Traffic Management Plan, Version 1.1	The Traffic Planner	28/10/2021	D08284343
Detailed Site Investigation, ref: P2007603JR03V03	Martens Consulting Engineers	27/1/2021	D08231926
Traffic and Parking Impact Assessment	Motion Traffic	July 2021	D08231914
Arboricultural Impact Assessment	Bellevue Tree Consultants	20/8/2021	D08231909
Shadow Diagrams DA14C, DA15C, DA16C	Into Architecture	25/10/2021	D8284344
Emergency Evacuation Plan	Into Architecture	25/10/2021	D8284344
Pedestrian Refuge	Into Architecture	25/10/2021	D8284344
Site Plan Stormwater Services, Rev D	ADCAR Consulting	6.07.2021	D08231923
Site Plan Stormwater Services, Rev D	ADCAR Consulting	6.07.2021	D08231923
Basement Plan Stormwater Services, Rev E	ADCAR Consulting	6.07.2021	D08231923
Ground Floor Plan Stormwater Services, Rev D	ADCAR Consulting	6.07.2021	D08231923
First Floor plan Stormwater Services, Rev C	ADCAR Consulting	6.07.2021	D08231923
Roof Plan Stormwater Services, Rev C	ADCAR Consulting	6.07.2021	D08231923
Sediment and Erosion Control Plan	ADCAR Consulting	6.07.2021	D08231923

2. Amendment of Plans

a) To comply with Councils requirement in terms of privacy, the approved plans are to be amended as follows:

i) The south-western elevation of the first-floor level, outdoor play area must include translucent laminated glass as the balustrade with the appropriate acoustic treatment as recommended within the approved plans and Acoustic Report.

b) These amended plans must be submitted with the application for the Construction Certificate.

3. Construction Certificate

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

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

c) The Construction Certificate/ Road Works Approval plans must be consistent with the Development Consent plans.

4. Road Opening Permit

A road opening permit shall be obtained from the Council to permit a person to dig into Council assets, such as roads, footpaths and nature strips. The applicable fees for the restoration of any public asset by Council shall be at the applicant’s full expense.

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, $17,600 must be paid towards the provision, extension or augmentation of public amenities or public services, based on development costs of $1,760,000.

b) The value of this contribution is current as of 20 January 2022. If the contributions are not paid within the financial quarter that this consent is granted, the contributions payable will be adjusted in accordance with the provisions of the Hornsby Shire Council Section 7.12 Development Contributions Plan and the amount payable will be calculated at the time of payment in the following manner:

$C_PY	=			$C_DC x CPI_PY
				CPI_DC

Where:

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

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

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

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

c) The monetary contributions shall be paid to Council:

(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.

6. Removal of Trees

a) This development consent permits the removal of trees numbered T1, T2, T5, T6, T7, T8, T9, T10, T11, T12, T13, T14, T15, T16, T18, T19, T20, T21, T22, T23, T25, T26, T27, T28, T29, T32, T33, T34, T35, T42, T43, T44 and T53 as identified in the Arboricultural Impact Assessment prepared by Bellevue Tree Consultants amended 20/8/2021 TRIM D08231909.

b) No consent is granted for the removal of trees numbered T3, T4, T17, T24, T30, T31, T36, T37, T38, T39, T40, T41, T46, T47, T48, T49, T50, T51, T52 and T54 as these trees contribute to the established landscape amenity of the area/streetscape.

Note: The removal or 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.

REQUIREMENTS PRIOR TO THE ISSUE OF A CONSTRUCTION CERTIFICATE

7. Building Code of Australia

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

8. Fire Safety Schedule

9. Disabled Access

The building is required to meet the requirements of the Disability (Access to Premises Buildings) Standards 2010.

10. Sydney Water – Approval

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

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

11. Dilapidation Report

A ‘Dilapidation Report’ is to be prepared by a ‘chartered structural engineer’ detailing the structural condition of the adjoining properties at Lot 703 DP 260293 No.3 Neale Avenue Cherrybrook and the adjoining access handle at Lot 701 DP 260293 No.41 Edward Bennett Drive Cherrybrook before the commencement of works.

12. Identification of Survey Marks

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

13. Detailed Site Investigation

a) On completion of demolition works and prior to the issue of a Construction Certificate, a Detailed Environmental Site Investigation (Stage 2) must be prepared for the subject site by a certified consultant as recognised under the Certified Environmental Practitioners Scheme – Site Contamination (CEnvP (SC)) and the Certified Professional Soil Scientist Contaminated Site Assessment and Management (CPSS CSAM) certification and submitted to Council for consideration and approval.

b) The investigation must be undertaken in accordance with NSW Environment Protection Authority’s Contaminated Sites Guidelines and the National Environment Protection (Assessment of Site Contamination) Measure 1999 (NEPM) and address the “data gap” presented by the existing dwelling footprint in accordance with the conclusions and recommendations of the Detailed Site Investigation, ref: P2007603JR03V03, prepared by Martens Consulting Engineers, dated 27/1/21,

c) Should the Detailed Site Investigation identify any contamination not previously identified within the application stage, Council and the PCA is to be notified immediately and development consent is to be sought from Council prior to the commencement of any required remediation works.

14. Site Validation Report

A Validation Report must be prepared by a certified consultant as recognised under the Certified Environmental Practitioners Scheme - Site Contamination (CEnvP (SC)) and the Certified Professional Soil Scientist Contaminated Site Assessment and Management (CPSS CSAM) certification, verifying that the entire site is suitable for its approved use.

The Validation Report must be submitted to the Principal Certifying Authority and a copy provided to Council prior to the issue of a Construction Certificate.

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

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

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

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

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

a. Public notification of proposed works.

b. Long term signage requirements.

c. Short term (during actual works) signage.

d. Vehicle Movement Plans, where applicable.

e. Traffic Management Plans.

f. Pedestrian and Cyclist access and safety.

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

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

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

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

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

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

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

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

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

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

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

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

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

b) A Construction Waste Management Plan detailing the following:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

e) Identification of approved sediment and erosion control measures.

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

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

16. Pedestrian Access Management Plan

A Pedestrian Access Management Plan (PAMP) detailing how pedestrian movements will be changed and managed during various stages of development, particularly during any partial or total closure of footpaths. Council will review the PAMP, agree any modifications with the proponent and enforce the PAMP during construction.

17. Stormwater Drainage

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

a) Connected to an existing Council pit in Neale Avenue with the following requirements:

i. A separate Application must be made to Council for ‘Approval to Connect Stormwater Drainage Outlet to Council’s System’ with all fees paid, prior to connecting to Council’s drainage system.

ii. The connection to Council’s drainage pit or pipeline in accordance with Councils Design Standard Drawing No. 6 must be inspected by a Council Engineer from Council’s Planning Division.

Note: An inspection booking can be made by calling Council on 9847 6760 quoting the Application reference number commencing SD

iii. Connection to Council’s drainage system shall include design and construction of Council’s standard kerb inlet / raised / flush / grated / concrete filled pit top in accordance with AUS-SPEC Specifications (www.hornsby.nsw.gov.au/property/build/aus-spec-terms-and-conditions). The Applicant’s Engineer must prepare the design of system including location of proposed work in the plan. Three (3) copies of the plan shall be submitted with lodgement and payment of the Application.

iv. Prior to the issue of an Occupation Certificate a Compliance Certificate must be obtained from Council for the connection to Council’s drainage system.

18. 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 17.7 cubic metres, and a maximum discharge (when full) of 29.0 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) Where above ground and the average depth is greater than 0.3 metres, a ‘pool type’ safety fence and warning signs must be installed.

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

19. Boundary Levels/ Vehicular Crossing

A separate application under the Local Government Act, 1993 and the Roads Act 1993 being an ‘Application for Boundary Levels’ must be submitted to Council to obtain design levels at the front boundary for the design of the internal driveway, prior to the issue of a Construction Certificate.

Note: A separate application to construct the vehicular crossing being an ‘Application to Construct Vehicular Crossing from Roadway to Property’ is required to be submitted to Council for approval.

20. Internal Driveway/Vehicular Areas

The driveway and parking areas on site must be designed and a Construction Certificate issued in accordance with Australian Standards AS2890.1, AS2890.2, AS3727 and the following requirements:

a) Design levels at the front boundary be obtained from Council.

b) The driveway be a rigid pavement.

c) The driveway grade for the first 6 metres measured from property boundary must not exceed 1 in 20 (5%).

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

Note: A construction certificate shall be obtained prior to the commencement of these works and are to be completed prior to the issue of an occupation certificate

21. Footpath

a) A separate Road Works Approval must be obtained from Council for the approval of a design to construct a concrete footpath in the public road reserve under S138 of the Roads Act 1993.

b) A concrete footpath must be designed across the full frontage of the subject site in accordance with AUS-SPEC Specifications (www.hornsby.nsw.gov.au/property/build/aus-spec-terms-and-conditions) and the following requirements:

i. The existing footpath in Neale Avenue and Edward Bennett Drive being removed.

ii. Pouring of the concrete footpath to the full frontage of the subject site.

iii. The land adjoining the footpath to be fully turfed.

iv. Any public utility adjustments to be carried out at the cost of the applicant and to the requirements of the relevant public authority.

Note: The applicant is to lodge a S138 Roads Act Application via the NSW Planning Portal.

22. Pedestrian Refuge Approvals

a) A pedestrian refuge in Neale Avenue near the intersection with Edward Bennett Drive is to be designed in accordance with TfNSW Technical Direction TDT 2011/01a, including all signage associated with the refuge. The design is to be submitted to Council at TrafficBranch@hornsby.nsw.gov.au for consideration by the Hornsby Local Traffic Committee prior to issuing of the construction certificate.

b) A separate Section 138 Roads Act Approval must be obtained from Council for the approval to construct a pedestrian refuge in Neale Street. The pedestrian refuge must be designed in accordance with AUS-SPEC Specifications (www.hornsby.nsw.gov.au/property/build/aus-spec-terms-and-conditions) and the following requirements:

i. The design of a pedestrian refuge must be approved by the Hornsby Local Traffic Committee; and

ii. Submission of civil engineering drawings with construction details.

Note: The applicant is to lodge a S138 Road Act Application via the NSW Planning Portal. The LTC approval shall be obtained prior to lodging the S138 Roads Act Application.

23. Waste Management Details

The following waste management requirements must be complied with prior to issue of a construction certificate:

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

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

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

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

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

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

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

vi) The doors are to be robust and lockable, with a door opening of no less than 1.6m width. The doors must be able to be opened from inside the room without a key.

vii) The bin storage room must have sufficient space to comfortably house the required number of bins (6 of 240 L bins) and aisle space to access and manoeuvre these bins with every bin being accessible (no stacking of bins 2 or more deep).

Note that 240L bins are 600mm wide, 750mm deep, 1100mm high; 660L bins are 1370mm wide, 850mm deep, 1250mm high; 1100L bins are 1370mm wide, 1245mm deep, 1470mm high; allow 75 mm between bins for ease of manoeuvring and to avoid damage to walls and doors from bins scraping against them.

c) The service lift must be designed to permit the transport of no less than one 660L bin and one person between the basement and ground levels. Design considerations include, but are not limited to, internal area, door opening width, maximum load limit.

d) A Waste Management Plan Section One – Demolition Stage and Section Three – Construction Stage, covering the scope of this project and including the following details, is required to be submitted to Council:

i) An estimate of the types and volumes of waste and recyclables to be generated.

ii) A site plan showing sorting and storage areas for demolition and construction waste and the vehicle access to these areas.

iii) How excavation, demolition and construction waste materials will be reused or recycled and where residual wastes will be disposed.

iv) The total percentage (by weight) of demolition and construction waste that will be reused or recycled.

Note: the site(s) to which the waste materials are taken must be legally able to accept those wastes.

e) Should there be any conflict or confusion between approved plans and/or consent conditions related to the waste management system, then written clarification must be obtained from Council.

24. Appointment of a Project Arborist

a) A project arborist with AQF Level 5 qualifications must be appointed.

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

REQUIREMENTS PRIOR TO THE COMMENCEMENT OF ANY WORKS

25. 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.

26. Protection of Adjoining Areas

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

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

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

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

d) Have been identified as requiring a temporary hoarding, fence or awning within the Council approved Construction Management Plan (CMP).

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

27. 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.

28. Erosion and Sediment Control

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

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

29. Installation of Tree Protection Measures

a) Trees to be retained and numbered T3, T4, T17, T24, T30, T31, T36, T37, T38, T39, T40, T41, T46, T47, T48, T49, T50, T51, T52 and T54 as identified on the Tree Location Plan prepared by Bellevue Tree Consultants amended 20/8/2021 TRIM D08231909must have tree protection measures for the ground, trunk and canopy installed by the project arborist as follows:

i. For the duration of demolition works, in accordance with the Tree Protection Plan for prepared by Arboricultural Impact Assessment prepared by Bellevue Tree Consultants amended 20/8/2021 TRIM D08231909.

ii. For the duration of construction works, in accordance with Tree Protection Plan prepared by Arboricultural Impact Assessment prepared by Bellevue Tree Consultants amended 20/8/2021.

b) Tree protection fencing for the trees to be retained numbered T3, T4, T17, T24, T30, T31, T36, T37, T38, T39, T40, T41, T46, T47, T48, T49, T50, T51, T52 and T54 must be installed by the engaged AQF 5 project arborist and consist of 1.8m high temporary fencing panels installed in accordance with Australian Standard AS4687-2007 Temporary fencing and hoardings.

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

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

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

30. Existing Waste Collection Service

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

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

31. Garbage receptacle

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

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

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

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

REQUIREMENTS DURING DEMOLITION AND CONSTRUCTION

32. Construction Work Hours

All work on site (including demolition and earth works) must only occur between 7am and 5pm Monday to Saturday (unless otherwise approved in writing by Council due to extenuating circumstances).

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

33. Work Zone

a) All construction vehicles associated with the proposed development are to be contained on site or in a Local Traffic Committee (LTC) approved “Works Zone”.

b) The site supervisor to be advised that the Works Zone will be deemed to be in effect, and fees will apply, between the dates nominated by the supervisor, or when parking spaces are managed for the sole use of construction vehicles associated with the site.

c) The Works Zone signs shall be in effect only for the times approved by Council, and the time is to be noted on the sign. E.g., ‘Works Zone Mon-Sat, 7am-5pm’.

d) The applicant is required to supply a sign posting installation plan for referral to the Local Traffic Committee, noting on it the duration of the Works Zone.

e) The Works Zone is only to be used for the loading and unloading of vehicles. Parking of workers’ vehicles, or storage of materials, is not permitted.

34. Demolition

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

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

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

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

35. 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.

36. 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.

37. 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.

38. 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.

39. Landfill

a) Prior to fill material being imported to the site, a Waste Classification Certificate shall be obtained from a suitably qualified environmental consultant confirming the fill wholly consists of Virgin Excavated Natural Material (VENM) as defined in Schedule 1 of the Protection of the Environment Operations Act 1997 or a material approved under the NSW Environment Protection Authority’s Resource Recovery Orders and Exemptions.

b) The required Waste Classification Certificate must be obtained by the Principal Contractor prior to fill being imported to the site and made available to Council at its request.

40. 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.

41. Landfill

b) The required Waste Classification Certificate must be obtained by the Principal Contractor prior to fill being imported to the site and made available to Council at its request.

42. 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.

43. Waste Management

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

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

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

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

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

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

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

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

i) The identity of the person removing the waste.

ii) The waste carrier vehicle registration.

iii) Date and time of waste collection.

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

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

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

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

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

44. 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.

45. Compliance with Pedestrian Access Management Plan

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

46. 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.

47. 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.

48. Maintaining the health of trees approved for retention

The appointed project arborist must monitor and record any and all necessary actions required to maintain tree health and condition for trees numbered T3, T4, T17, T24, T30, T31, T36, T37, T38, T39, T40, T41, T46, T47, T48, T49, T50, T51, T52 and T54 on the approved plans.

49. Maintaining Tree Protection Measures

Tree Protection Measures must be maintained by the project arborist for the duration of works.

50. 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 driveway and building in the Tree Protection Zone of trees to be retained numbered on the approved plans must be supervised by the project arborist for the first 1.000 meter undertaken manually to locate roots and allow for pruning in accordance with condition 8a.

c) To minimise impacts within the Tree Protection Zone (TPZ) of trees to be retained on the approved plans, the installation of services must be undertaken as follows:

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

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

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

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

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

ii. Installation of geotextile fabric ground covering.

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

51. Building Materials and Site Waste

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

52. Unexpected Finds

53. Vehicular Crossing

A separate application under the Local Government Act 1993 and the Roads Act 1993 must be submitted to Council for the installation of a new vehicular crossing and the removal of the redundant crossing. The vehicular crossing must be constructed in accordance with AUS-SPEC Specifications (www.hornsby.nsw.gov.au/property/build/aus-spec-terms-and-conditions) and the following requirements:

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

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

c) The footway area must be restored by turfing.

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

REQUIREMENTS PRIOR TO THE ISSUE OF AN OCCUPATION CERTIFICATE

54. Sydney Water – s73 Certificate

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

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

55. Asbestos Clearance Certificate

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

56. Damage to Council Assets

57. 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.

58. Works as Executed Plan

A works-as-executed plan(s) must be prepared by a registered surveyor and submitted to Council for completed road pavement, kerb & gutter, public drainage systems, driveways and on-site detention system. The plan(s) must be accompanied by a certificate from a registered surveyor certifying that all pipelines and associated structures lie wholly within any relevant easements.

59. Construction of engineering works.

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

60. Preservation of Survey Marks

A certificate by a Registered Surveyor must be submitted to the Principal Certifying Authority, certifying that there has been no removal, damage, destruction, displacement or defacing of the existing survey marks in the vicinity of the proposed development or otherwise the re-establishment of damaged, removed or displaced survey marks has been undertaken in accordance with the Surveyor General’s Direction No.11 “Preservation of Survey Infrastructure”.

61. Retaining Walls

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

62. 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.

63. External Lighting

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

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

64. Acoustic Verification (Mod A)

Prior to the issue of an Occupation Certificate, an Acoustic Verification Certificate is to be prepared by a suitably qualified Acoustic Consultant and submitted to the Principal Certifying Authority and the Council. The Acoustic Compliance Certificate is to certify the following:

a) The development has been constructed in accordance with the recommendations within Section 4 of the Noise Impact Assessment, ~~ref: 5109R001.LB.211029, prepared by Acoustic Dynamics, dated 1/11/21.~~ Ref 5109r003.Lb.250320 prepared by Acoustic Dynamics, dated 20 March 2025.

b) Air conditioning units do not exceed a maximum sound power level (LW) of 65dB(A) per unit and are programmed to switch off between 6pm and 7:00am ~~7:15am~~ weekdays and on weekends and public holidays.

c) The car park exhaust fan does not exceed a sound pressure level (Lp) of 70dB(A) at the entrance of the basement.

d) Soft closure hinges have been installed to all self-closing gates.

e) A timer has been installed on the carpark roller door to ensure the door remains locked between 6:00pm and 6:45am ~~7:15am~~.

Should the Acoustic Compliance Certificate identify any non-compliance issues, the Certificate is to provide suitable recommendations for mitigation of those issues.

65. Replacement Tree Requirements

The trees approved for removal under this consent, being trees numbered T1, T2, T5, T6, T7, T8, T9, T10, T11, T12, T13, T14, T15, T16, T18, T19, T20, T21, T22, T23, T25, T26, T27, T28, T29, T32, T33, T34, T35, T42, T43, T44, T44 and T53 must be replaced as provided in the approved Landscape Plan.

66. Final Certification

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

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

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

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

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

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

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

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

67. Completion of Landscaping

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

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

68. Waste Management Details

The following waste management requirements must be complied with:

a) Prior to an Occupation Certificate being issued or the use commencing, whichever is earlier, the Principal Certifying Authority must ensure arrangements are in place for delivery of bins for the on-going use of the site and for regular scheduled commercial waste collection services to commence within 7 days of occupation.

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

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

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

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

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

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

c) The bin carting routes must be devoid of any steps.

Note: Ramps between different levels are acceptable.

d) The commercial bin storage room at the basement level must include water or a hose for cleaning, graded floors with drainage to sewer, sealed and impervious surfaces, robust door(s), adequate lighting and ventilation, and must be lockable.

69. Fire Safety Statement – Final

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

70. Food Premises Compliance

a) The fit out and operation of that part of the building to be used for the manufacture, preparation or storage of food for sale, must be in accordance with Australian Standard AS4674-2004 Design and fit out of food premises, the Food Act 2003, and the Food Regulation 2015 and the Food Standards Code developed by Food Standards Australia New Zealand. Food Standards 3.2.2 and 3.2.3 are mandatory for all food businesses.

Note: Walls are to be of solid construction.

b) Prior to the commencement of the business, the operator is required to contact Council’s Public Health Team to arrange for a Health Officer to carry out an inspection of the premises to ensure compliance with the Australian Standard AS4674-2004 Design and fit out of food premises, the Food Act 2003, Food Regulation 2015 and the Australia New Zealand Food Standards Codes.

c) A letter of compliance provided by Hornsby Shire Council’s Health Officer must be submitted to the Principal Certifier prior to an occupation certificate being issued.

Note: Council’s Public Health team can be contacted on 02 9847 6014

71. Grease Trap & Dry Basket Arrestor Installation

An application must be submitted to Sydney Water for the installation of a grease trap and dry basket arrestor (floor and sink) in accordance with the ‘Guidelines for the On-Site Pre-Treatment of Trade Wastewater Discharges – Sydney Water (May 2004)’.

72. Kitchen Exhaust Installation

A kitchen exhaust system must be designed and installed to effectively prevent air pollution in accordance with the Protection of the Environment Operations Act 1997.

73. Pedestrian Refuge and Footpath Construction

a) The pedestrian refuge in Neale Avenue near the intersection with Edward Bennett Drive must be constructed in accordance with the conditions of consent prior to the issue of an occupation certificate.

b) A pedestrian footpath must be constructed along the entire frontage of the site in accordance with the conditions of consent prior to issue of an Occupation Certificate.

OPERATIONAL CONDITIONS

74. Use of Premises

a) The development approved under this consent shall be used for ‘centre-based child care facility’ and not for any other purpose without Council’s separate written consent.

b) The child care centre shall accommodate a maximum of 60 children.

75. Hours of Operation (Mod A)

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

i. Monday to Friday ~~7.30am~~ 7:00am to 6pm

ii. Saturday, Sunday & Public Holidays No work

b) Staff must not arrive prior to ~~7:00am~~ 6:45am.

c) All deliveries, service vehicles (inclusive of waste collection), cleaning and maintenance must be carried out within the approved hours of operation.

76. Fire Safety Statement - Annual

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

77. Car Parking and Deliveries

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

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

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

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

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

78. Sight Lines

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

79. Noise Management - Ongoing (Mod A)

To ensure a reasonable level of acoustic amenity is provided to nearby residential premises the operation of the development must be carried out in accordance with the approved Noise Impact Assessment, ~~ref: 5109R001.LB.211029, prepared by Acoustic Dynamics, dated 1/11/21~~ Ref 5109r003.Lb.250320 prepared by Acoustic Dynamics, dated 20 March 2025 and the following additional requirements:

a) Noise levels from children playing in the outdoor play areas must not exceed 45dB(A) when measured as a Leq 15-minute 1 metre from the boundary at all receivers, and on the balcony of all two storey receivers as identified in Table 3.3 of the above Noise Impact Assessment.

b) Combined noise levels from children playing in the indoor playrooms, the use of the driveway and carpark and all mechanical plant inclusive of heating, cooling, ventilation, air conditioning and lifts must not exceed 41dB(A) when measured as a Leq 15 minute at one metre from the boundary fence of all receivers, and on the balcony of all two storey receivers, as identified in Table 3.3 of the above Noise Impact Assessment.

c) The operation of the Child Care Centre must be carried out in accordance with the approved Plan of Management ~~ref: V2.1 prepared by unknown author, dated October 2021~~ prepared by unknown author dated 4 April 2025 and to include the following requirements:

i. Any complaints regarding the operation of the childcare centre must be directed to the manager and a log book of the date and time of the complaint, contact details of the person making the complaint and the nature of the complaint must be documented. This logbook must be readily available to Council; and

ii. Contact details including a 24 hour telephone number must be provided on the childcare centre’s website.

d) The maximum number of children permitted within the outdoor play area are as follows:

i. First Floor 0-2 years outdoor areas 15 children.

ii. Ground Floor 2-3 years outdoor area 15 children.

iii. Ground Floor 3-5 years outdoor areas 30 children.

e) Doors and windows must remain closed during periods of high internal noise and when children are sleeping, except to allow for ingress and egress.

80. Acoustic Verification - Operational (Mod A)

Within a period of either six (6) months of commencement of operation OR establishment of an enrolment of a minimum 85% of the total permitted capacity of 60 children, whichever comes first, an acoustic assessment is to be undertaken by a suitably qualified environmental consultant in accordance with the Environment Protection Authority’s Noise Policy for Industry (2017) and Council’s Policy and Guidelines for Noise and Vibration Generating Development (Acoustic Guidelines V.5, 2000) and an Acoustic Verification Report submitted to Hornsby Shire Council confirming compliance with the following criteria:

a) Noise levels from the outdoor play areas of the child care centre during peak operation comply with the Noise Emission Criteria detailed in Table 3.3 of the Noise Impact Assessment prepared by Acoustic Dynamics, ~~dated 1/11/21, reference 5109R001.LB.211029 (TRIM: D08284341)~~ Ref 5109r003.Lb.250320 prepared by Acoustic Dynamics, dated 20 March 2025; when measured as a Leq 15 minute at one metre from the boundary fence at all receivers, and on the balcony of all two storey receivers, as identified in Table 3.3 of the above Noise Impact Assessment.

b) Combined noise levels from the indoor playrooms during peak operation, the use of the driveway and carpark and all mechanical plant inclusive of heating, cooling, ventilation, air conditioning and lifts must not exceed 41dB(A) when measured as a Leq 15 minute at one metre from the boundary fence of all receivers, and on the balcony of all two storey receivers, as identified in Table 3.3 of the Noise Impact Assessment~~, ref: 5109R001.LB.211029, prepared by Acoustic Dynamics, dated 1/11/21~~ Ref 5109r003.Lb.250320 prepared by Acoustic Dynamics, dated 20 March 2025.

c) Should the assessment find that any non-compliances with the above specified noise criteria, the Acoustic Verification Report must detail appropriate mitigation measures which shall be implemented upon written approval by Hornsby Shire Council.

d) The consent of the neighbouring properties from which measurements are to be taken must be obtained by the acoustic engineer carrying out the analysis. A right of access for acoustic monitoring purposes is not implied by these conditions. If access is denied from a neighbouring site, the monitoring is required to be carried out at a suitable alternate location as agreed to by Council.

81. Maintenance of Acoustic Barriers

All Acoustic barriers, including boundary fencing, must be maintained for the duration of the development. Responsibility for the maintenance of all acoustic barriers, including acoustic fences, is the sole responsibility of the owner of the development, and shall continue into perpetuity should the premises be sold in the future, unless otherwise approved by Council.

82. Landscape establishment

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

83. Ongoing Waste Management of the Site

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

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

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

c) Waste collection services must not take place between 8pm and 6am weekdays or 8pm and 8am on weekends and public holidays.

Note: Time-of-day service restrictions apply to commercial developments located near residential areas.

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

e) Bins must not be permanently stored in the ground level temporary bin holding area. All mobile garbage bins that are placed in the ground level temporary bin holding area for collection must be taken back to their bin storage room on the same day of service

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

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

- END OF CONDITIONS -