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The purpose of the covenant recommended under Condition No.20 is to alert future lot owners of the limited water depth for boat access atlow tide. The proposed development of the undisturbed natural area isacceptable in respect to the existing dwelling entitlement being maintained andthe undisturbed nature of the entire site, and would not warrant grounds forrefusal of the application. Legal advice obtained confirms that the amended proposaladdressed RFS bush firefighting concerns for development not to occur on theupper ridge area of the site and was accepted by Council in not creating anyadditional lots. The amended proposal involves the same waterfront area as originallyproposed for subdivision. The loss of scenic quality resulting from the reduction innatural area is acceptable in respect to the existing dwelling entitlementbeing maintained, and would not warrant grounds of refusal of theapplication.
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The proposed unit private open space areas form extension ofthe living rooms and meet the prescriptive measure for ‘outdoorrooms’ of the HDCP. The proposed building is well articulated and is incompliance with the HDCP prescriptive measures. The proposed buildingincludes appropriate façade treatment, flat roof form and elements tobreak the massing of the building. The proposed wrap-around balconies at the northern andsouthern side elevations involves a setback encroachment to 4m for more thanthe 1/3rd building length in non-compliance with the prescriptivemeasure of HDCP. A condition is recommended for deletion of thewrap-around balconies in compliance with the ADG privacy separationdesign criteria, which would meet the HDCP encroachment prescriptivemeasure.
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Vehicular accessis currently obtained from Redgrave Road over a shared right of carriagewaywith property No. 17A Redgrave Road. The following information isprovided for your assistance to ensure compliance with the EnvironmentalPlanning and Assessment Act 1979, Environmental Planning and AssessmentRegulation 2000, other relevant legislation and Council’s policiesand specifications. This information does not form part of the conditionsof development consent pursuant to Section 80a of the Act. The development applicationwas lodged prior to the commencement of Hornsby Local Environmental Plan2013 and is subject to the provisions of Hornsby Shire LocalEnvironmental Plan 1994.

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NSW Fisheries advised theproposal would not impact on key fish habitat and granted its General Terms ofApproval with no conditions. Pursuant to Clause 10 of HSLEPCouncil must be satisfied that adequate water and sewerage services areavailable to the development. Regulation 55 does not containexpress statutory or jurisdictional limits on where and when the power can beexercised.

A locally indigenous tree (Tree No. 39 – Corymbiagummifera – Red Bloodwood) is located on the adjoining school land,near the proposed driveway. The proposed driveway would encroach to within 10% of the treeprotection zone (TPZ) which is acceptable in accordance with AS4790 –Protection of trees on development sites. The basement car park includes sufficient storage forresidents and would meet the minimum storage area requirement of the ADG.A condition is recommended in this regard.
In conclusion, the development would result in an outcomethat is consistent with the current and desired future character of the area.As a consequence, the proposal meets the desired outcomes of Part 3.1.1 in theHDCP and is considered acceptable. Objections have been receivedraising concerns regarding the height, scale, floor area and the relationshipof the proposed dwelling to the topography of the site. Clause 5.10(4) of the HLEP statesthat “the consent authority must, before granting consent under thisclause in respect of a heritage item or heritage conservation area, considerthe effect of the proposed development on the heritage significance of the itemor area concerned”.

The desired outcomes of part3.1.6 Privacy in the HDCP is to “encourage development that isdesigned to provide reasonable privacy to adjacent properties”. Part 3.1.2(h) of the HDCP states that “an ingroundswimming pool is able to encroach to within 1 metre of the rear boundary,measured to the water line”. The proposed lap pool would be located 1metre from the rear boundary however, the majority of the pool would be locatedabove-ground. The dwelling house proposal complies and exceeds the setbackprescriptive measures of the HDCP apart from the lap pool. Under Clause 6.2, Council is required to assess the impactsof the works on adjoining properties, drainage patterns and the soil stabilityof the surrounding environment. Clause 5.10 of the HLEP sets out heritage conservationprovisions for Hornsby Shire.
Complying development can be carried out on bushfire and flood proneland provided additional locational, materials and construction requirementsand standards are met. The site of the proposed lots for future dwelling houses could bedeveloped subject to geotechnical design standards being met. The minimum 40 hectare lot size development standard for theEnvironmental Protection E (River Settlement) Zone retains the establishedriver settlements with no subdivision development opportunity. The riversettlement at Calabash Point typically includes lots ranging from 725m2to 1300m2 in area.

Whether the amended proposal is the same development asoriginally submitted was raised as a concern. The likelihood of further subdivision with access offMcCallums Road was raised as a concern. Inconsistency with the strategy for no further subdivisioninvolving river settlements was raised as a concern. A water depth of 300mm ISLW would enable access to theproposed pontoons by small vessels in the event of a medical emergency. The proposed removal of vegetation is acceptable subject tothe loss being offset under Council’s Green Offset Code. The second jetty is shared between proposed lot 1 and lot 2and comprises a 3.0m x 1.5m jetty with 6m x 1.5m ramp and 12m x 2.5m pontoon.The jetty is at the eastern side of the frontage of lot 2 and above the MHWM.
The proposed residential flatbuilding would contribute to the desired future character of the Peats FerryRoad, Asquith Precinct. The proposal is satisfactory in respect to the HDCPdesired outcomes for noise and vibration. The adjoining school sports field would be partiallyovershadowed by the proposed building between 12pm and 3pm, 22 June. Theovershadowing would occur over less than 50% of the sports field area and isacceptable in respect to the HDCP requirement for community facilities.
Accordingly the application is subject to the provisions ofHornsby Shire Local Environmental Plan 1994, the planning instrument applyingto the site and in force prior to the commencement of HLEP. In my opinion, there is nolegal impediment on the Council forming the view that it has the power to amendthe development application. In a submission received in response to the amended plans,concerns were raised by a solicitor that the amended application was completelydifferent to the original proposal and therefore, required a new application.