17 May 2018 - HLPP

I'd like to open and welcome you to the meeting of the Hawkesbury Independent Hearing and Assessment Panel. I will ask my fellow panellists to introduce themselves, but I am David Ryan. I'm a planner and lawyer, but only practising as a planner, and I'm the chair. I'm an alternative chair, but the chairs are rotated by ministerial requirement, so I'm chairing today's meeting. Paul . Yes

And I'm Michael Harrison. I'm a consultant urban designer and urban planner.

If I could just remind panellists when they're talking to press the button, because otherwise it won't record properly.

Today's

Agenda , we have three items, two of which involve public submissions. The procedures for this meeting are that each of those items will be heard in turn. So we'll be inviting anyone who has registered to speak and/or the applicant who may wish to speak, and we will hear all of those people who do wish to speak. And after that, we will adjourn the meeting for some discussions based on what we hear, and we'll be returning to the meeting to make our decision. We'll be voting and decision made in the public forum. Could I ask if there are any conflicts to be declared by the members of the panel?

No.

No conflicts. The first item is item 3, which is 396 Bells Line of Road, Kurmond, subdivision into 27 lots.

Do we have any speakers?

Could you come forward? I think it's the roster, is it

Oh, sorry

Okay, so I believe we have Glenn Apps, Mike Harris, and Ken Hardaker. If you could just, before you speak, if you could introduce yourself.

Good morning, I'm Ken Hartaker, one of the owners. Good morning, Glen Apps

Consulting town planner for the applicant. And good morning, Mike Harris, co-owner.

Thank you, Mr Chair and members of the panel. The panel has before it now two reports on this application, the principal report and also an addendum report prepared for today. Those reports are quite comprehensive, and there's a number of matters that are drawn to the panel's attention that the panel rightly needs to give consideration to in order to make a decision. To address those points in those reports, I've prepared a written submission. I'd also like to speak to a number of key points within those, in the reports. The key points, as we see them, are whether the proposal meets the objectives of the zone, the impacts on the character of the area, visual impacts, and whether the proposed lot sizes are appropriate. And finally, a matter drawn in the addendum report, whether Clause 4.1D of the Hawkesbury LEP prevents the granting of consent.

Firstly, we'll start with the zone objectives. Clause 2.3 of the Hawkesbury LEP is the standard instrument clause regarding zone objectives and it says that consent authority must have regard to the objectives of the zone. The zone objectives should not be considered in isolation of other matters, particularly what's permissible on the site and the lot size requirements. The zone objectives must be applied in a way that recognises that there has been a deliberate and considered intent to allow lots of 2,000 square metres over parts of the subject land. The site is within the Kermond Carajong investigation area, where there is a strategic vision to increase the lot yield in the area. The proposed development satisfies the zone objectives that are relevant to the subdivision and in no way is what the proposal does is that antipathetic to those zone objectives.

I'd like to move on to the character of the area. In the submission, I've prepared a cadastral map of the area. The lots that are in orange are lots that are under 2,000 square metres. The lots that are in green are between 2,000 square metres and 4,000 square metres in size. The ones up here on Kermond Road are an average of 2,200 square metres. The ones on Inverary Drive, just to the south of the subject land, are an average of 2,100 square metres. So what we're doing is not foreign. We're not introducing a style of development or a subdivision pattern that's foreign to the area. One might think of Kermond as being acreages. That's not what defines the character of the area. There is a lot of variety in the lot sizes that's exhibited in the Kermond area.

Also, too, a lot of the lots on Inverary Drive fronting Bells Line of Road are around 30 metre frontages. The lots between the subject site and Kermond Road are similarly 30 metre frontages. So there is a sort of a density, a visual density, that occurs along Bells Line of Road. For visual impact, I realise that we're not just talking about vantage points along Bells Line of Road and Kermond Road, but there's other vantage points, such as from the restaurant and even properties within the site should it be developed. Look, for the topography of the land and the vegetation in the riparian corridor, when you look from Bells Line of Road, the only lots you will see are those lots along the very back of the site.

And of those, due to the topography of the land and the vegetation, and also the screening that’s proposed by the application along the street tree planting, that’s going to be very dappled views of what you will see up there. And in any event, the couple of blocks that you will see won’t be offensive. They’re not out of keeping with what’s happening behind the site now, with the rural residential, couple of rural residential properties that are existing behind the property with dwellings and large barn-style sheds. The applicant was given the opportunity to reduce the number of lots along the back fence. We see no justification for doing that. There would be no measurable change to what you would see from Bells Line of Road or from Kerman Road should you do that.

I’ll move on to the issue of lot sizes.

What can’t be denied is that the proposed development complies with the lot size map that’s established in the LEP. Those lot sizes have been resolved through considerable investigation and assessment over, I think now it’s a five-and-a-half or six-year period, with the last two years of that being taken up by working through this subdivision application. There’s also a planning proposal on the adjoining site at 2 Inverary Drive to also allow 2,000 square metre lots, which has the support of Council. The strategic vision for the Kerman-Kurrajong investigation area is to allow lots of that size. Council is not pressed for 4,000 square metre lots because 2,000 square metre lots are consistent with what’s happening in the area and the character of large lot residential.

I'd just like to say that the applicant should not be criticised or penalised for actually complying with the LEP. I think this is a well-thought-out proposal, and again, compliant. Obviously, compliance isn't the only test. We have to look at the merits and character, but notwithstanding, this is a compliant application. And the

Final point I'd like to make, as a matter drawn to the panel's attention in the addendum report, which is clause 4.1D of the Hawkesbury LEP. 4.1D creates a bar to development with two tests being met. One of those is the reticulated sewerage. It says that the consent authority must not grant consent to development on the site unless reticulated sewerage is not available and the lot sizes are less than 4,000 square metres. Don't read the and as an or. What's happening is the site does have reticulated sewer, it has access to sewer, and the lots are under 4,000 square metres. The 4,000 square metres only comes into play when you don't have reticulated sewer. We do have reticulated sewer, so it's not you don't have reticulated sewer or you're under 4,000, it's you don't have reticulated sewer and you're under 4,000.

I think the motive behind that clause would be that if you didn't have access to reticulated sewer, then you'd need to provide on-site wastewater management, and therefore you'd need lots of a size of 4,000 square metres to achieve that. We have reticulated sewer, so therefore the need for the 4,000 square metre lots is not triggered. So clause 4.1D is not a barrier to granting consent, should the panel deem it worthy to do so. So again, the development before you is appropriate, should be granted conditional consent, and thank you, panel. Those are my submissions.

Any other speakers?

Good morning once again.

It was our understanding that from the minutes of March 28th panel meeting, we had essentially addressed and resolved the actual issues at hand and documented within the Council's report, and that the remaining issues centered around whether there should be a lesser lot yield along the rear boundary. I have provided a copy of my verbal submission from that meeting as it appears not to be included in today's report, so here it is here. Again, our understanding is that we are to address the three points as listed in the minutes, and obviously I've left that to Mr. Apps to address and put in his written submission.

Firstly, we'd like to thank Council planners for their guidance and assistance through this process, and especially Andrew Johnston, Christy Egan, Houston Matt Owens, who've worked tirelessly with us on this. Ultimately, their recommendation was that the application was worthy of approval. It is public knowledge that Council outsourced our development application to a private planner, which may not be, but what may not be so publicly known is that the outsourcing had nothing to do with work overload or inexperience, but directly attributed to those higher up not accepting their recommendation for approval. This process started running parallel with the final stages of our gazettal and mapping of the LEP, and after three and a half years of work to attain our rezoning and the aforementioned gazettal and mapping.

Over five and a half years, we have worked extremely close with a number of council planners, including Philip Plether, Matt Owens, Shari Hussein, Andrew Kearns, Andrew Johnston, and Christy Eganhus, in an effort to ensure that every criteria under not only the Hawkesbury Residential Lands Strategy, but also under the HLEP had been met. And over the five and a half year periods, we had passed through the following processes: gateway twice and exhibition. Gateway an exhibition twice and three council meetings approved at every level. If over this period it was council staff's intention to refuse our application, and with the history of this application, we most certainly would have been advised.

On the 26th of October 2017, we were in fact advised that our DA would be completed and approved within two weeks. My previous submission gives an accurate chronology of events thereafter and up to the intervention and the outsourcing of the report.

I'm just trying—

Sorry, I've just lost myself here. I think I'm reading the wrong one. What is extremely disturbing is that the agenda, as now set, impedes our progress but has completely undermined the integrity of the council's own planning department.

Excuse me, if you could just restrict your comments to the merits of the application, I think it's better than— That's fine. I don't want to hear any disparaging remarks about the council, please.

Sorry, I'll have to go back to this because I've—

Sorry. Would you like the other gentleman

To speak while you're gathering your thoughts?

Thank you, Mr

Chairman. It is well documented that we have worked with the planning department for six years to achieve the rezoning of 396 Bells Line of Road and mapped on the LEP. Gazetted predominantly with 2,000 square metre lots and two larger lots which were created protection area over the riparian zone. Should also be noted that over the three and a half kilometres of creek line, our 280 metres across the site is the only protected area, will be the only protected area. For two years, our direct contact has been with senior council planner Andrew Johnson, who was the primary staff planner responsible for reviewing our application and ultimately for recommendation for approval. On the 26th of October 2017, we were advised by Andrew that he had the final document, that was the RMS letter of concurrence, and we would expect our DA within two weeks.

From early November 2017 to mid-February 2018, our application remained in limbo. We were advised it had been completed and was expected to be tabled at the council meeting on the 27th of February 2018 with a recommendation for approval. When this did not happen, we were advised that we would be heard in an IHAP meeting. But the report, as put forward, would be outsourced to a private consultant, something we did not understand. So we were scheduled for the first IHAP meeting on the 28th of March 2018, without any knowledge of who would be preparing the report. In fact, until a couple of days preceding the panel meeting, we were advised that none of the senior planning staff were aware of who was preparing the report.

And this was even after the report had been included on the agenda. So not only had the author of this report not had any contact with the owners over the preceding years, but also had no contact with the planners who had worked on the proposal for two years. So at no time over the duration of our application was there any indication that this application would not be supported by Council. With the knowledge gained and documentation and consultations over the two years, it would make interesting reading, from my point of view, as to where the original report is that recommended us for approval. Thank you.

Sorry

I'll finish up where I was there, but I'll just start again with, you don't want me to go to the start, do you? No, and as I say,

We'd prefer not to hear the background to the assessment, but the merits of the case, please.

Yeah. Well, I'll just finish with saying we believe in and advocate the IHAP process, and also believe that its intention to increase transparency and integrity into the approval process is well warranted. We trust the panel has the foresight to appreciate our proposal and the integrity to make the decision that it sees the right one to make on the day. The review process of the Hawkesbury Residential Lands Strategy is not a statutory process and should not overtake the merits of this assessment or our development application. Our application remains completely compliant and should be determined under current planning controls. Thank you.

Thank you very much. Do any of the panellists have questions for any of the speakers?

Yes, Mr Chairman, I do. Perhaps a question to Glenn, the town planner. Glenn, I was particularly concerned, and you reaffirmed your statement that highlights my concern, that you said on the last occasion with a refusal that you saw no justification for it. And since that time, there's been no movement beyond that position that you had on the last occasion. And it just concerns me that , in effect, there was a form of invitation to you and to the owners to rethink some accommodation to try to move the matter forward, bearing in mind that there has some merit in parts of the proposal. And I'm taken by what's in the papers on page 32 dealing with the issue of public interest. With that period of transition that we find ourselves in in relation to the [unclear] proposal for review, and so some accommodation could be taken on board to think about the reduction of lot sizes, particularly on the northern side.

Is that correct? Opposite to the Bells Line of Road

The

Reduction of lots. Yes, reduction of lots, sorry. Yes, so the reduction of lots in terms of at least having a conversation with the planners, because you've obviously had an extensive communication with the planners, and so I'm somewhat struck by why this hasn't happened. You've obviously had an opportunity to have a long dialogue with the planners, and there's been obviously cooperation on both sides. Why has that stopped? Why has there been—and you now come to this place today saying that, quote, no justification for it. It just feels that an opportunity there has been presented to you on the last occasion to have an ongoing dialogue, look at some reduction, work out some modelling, come forward with something that's pretty consistent with meeting all the other objectives.

And so I'd just be interested to know why there's been perhaps an intransigence. Why have you taken such an intransigent position?

Thank you. Thank you for the question. It's not that nothing has been done. There has been a lot of thought put into the merits of the application and whether a reduction in lot numbers, or with a commensurate increase in lot sizes, what is the gain for the public interest. Again, if I can go back a step, when council formulated the lot size mapping in the LEP, they gave the front half—and I say the front half, the southwestern part fronting Bells Line of Road—a 2,000 square metre. Well firstly, the site was looked at for 4,000 square metres across the entirety of the site in order to protect the riparian corridor and not sort of fragment the vegetation that's in the middle of the site. Those two lots were created over the one hectare mark, with the 1.5 and larger lots, and the trade-off was that we could have the 2,000 square metre lots.

Council has had ample opportunity in that process and since to look at increasing those lot sizes to 4,000 or 2,500. They haven't done so. So again, I understand the test is— Not, you tick the 2,000 square metres, congratulations, you get an approval. That's certainly not the test, I understand that. The test to us is: do we meet the objectives? We're not antipathetic to those objectives, so yes, we do. Visual impact and character. We've stood at the front of the site at Bells Line of Road and partially down the hill and from various vantage points, and what you see of those higher lots is very little. Those lots are screened by the vegetation in the riparian corridor, which is essentially locked up.

That vegetation stays. I think you would probably see from Bells Line of Road two lots. You may see a couple more roofs of sheds and dwellings, perhaps, again partially softened and screened by tree planting within the road reserves that is proposed, and also the vegetation within the riparian corridor. So the applicant has given, and I should say that I've come into this process fairly recently, and when I was approached to look at this job, I had a number of concerns, and every question I asked Mr Hardacre, he had an answer for, and that answer allayed my concerns. Things like road access, visual impact, sewerage, everything's been checked off, to my mind. So the applicant has thought long and hard about reducing the lot yield to allow larger lots across the back.

We don't see that there's a measurable gain from doing that. You would, instead of seeing—

Can I just interrupt? So has there been any modelling in terms of just the hypothetical? This is for 37 lots. Has there been any modelling for 20, 25, 30 to look at the viability? I understand there has to be a viability, but can you share that at all with the IHAP as to what other initiatives you've looked at, and that's why you're reaffirming the 37 proposal?

Thank you. I haven't prepared that modelling, but I understand the applicant has looked at that, and it doesn't work. With the cost of providing the development, the cost of public infrastructure such as the sewerage works, the VPA that's to be entered into, there's simply—the numbers are actually quite tight. It doesn't work. To reduce it to, for example, 25 lots—we have 37 lots. Again, if we reduce that to 35, the numbers again start to get tight.

With the chair's indulgence, one final. I understand the commerciality, the pragmatism that you've got to consider here, but the concessions that you receive under the community title provisions is more accommodating than if it was under the Torrens system. How would you necessarily balance that? If this was a Torrens title development, then you would be at a higher requirement in terms of the higher size, lesser volume in terms of lots. Can you not see that there is a balance here, that you're getting a benefit under a particular style of title, whereas the traditional title would have you getting out your modelling again? And so how do you balance that, please, from the community perspective?

Firstly, the subdivision is a Torrens title subdivision. The only community title aspect of the property is, as I understand, the sewerage pumping station. The pumping station is on a community title lot. The remainder of the site is still under Torrens title.

Thank you,

Mr. Chair. Thank you.

Mr. Chairman, may I respond, in part, to Mr. Rogers' question? Yes.

I'd like to take this opportunity to be frank and open and honest to the panel around that question, in so much as council planning staff and our group have worked tirelessly over the years to meet and exceed every barrier that's been put in place, including RMS letters of concurrence, Rising Main letters, sewerage application, Sydney Water, everything that's been able to be done. Back in November, when we were advised by senior planning staff that we would be recommended for approval, this all went upside down. We have, unfortunately, and I know, Mr. Chairman, you don't want to hear this, and I will be as astute as I can be, we have a situation where the senior staff and six of them who have looked at this application throughout the whole process on its merits and have moved it forward at each and every stage now do not have the ability to make these decisions, and that's why this has been sent to an external contractor.

This is the dilemma that we have, and this is the most appropriate action that we can take. We have tried to work with council staff, moving forward to jiggle around a few of the lots to appease the last panel's decisions on the possibility of having some larger lots at the rear. Unfortunately, that has all fallen on deaf ears. is their hands are tied. So, we have nothing other than to present our case again with its merits and what we've done. Now, we have prepared alternate lot layouts with the view that could this be managed today to a result, and that's something that, you know, we've tried to do this. But when we tried to approach council staff with this, it fell over. Thanks. Okay. Thank you.

Very briefly, but not in relation, just in terms of answering the question.

Okay.

I refer back to the report determination of the meeting of the 28th of March where this was brought up. Now, the triggering paragraph reads, The panel was of the view that a modified design that provided a greater differentiation in lot and smaller lots, not less than permissible to the minimum lot size between Bells Line of Road and the creek corridor, and larger lots to the rear of the block. Now, the four words of importance there are was of a view. We looked at what they've written down. We've spoken at length. We came in and had meetings with council staff in relation to this.

And ensuing emails backwards and forwards. As Mike said, we couldn't come to a decision with council staff because it was out of their hands.

This wasn't addressed at the last panel meeting because it wasn't raised at the last panel meeting. We sat at this panel meeting and we addressed the three points of concern that they had, which they had down as their issues. We addressed the three issues and we were asked three questions. That was it. And none of the questions related to lot layout or lot size.

So

At that stage, we weren't given a refusal. We were given a deferral with the suggestion of what was in their view what they were looking for. When we tried to address it, we couldn't get it. So our best choice was to come back with what we had, and at that stage, we thought we were coming back to the same panel. You haven't had the, as I said, my response to the first report is there, which I don't know that you've had an opportunity to have a look at. But what was adjudicated in that paper is what was in there and what Mike had said and what our previous planner had said. So I feel we have done everything possible to get somewhere. As Mike said, we do have other thoughts, and if we can get to an agreement today, we're more than happy to. Sorry, could I just clarify? It's not at the moment. Sorry, is that part of

The table documents that you're putting to us?

It's not at the moment, but it's something that I think that we could discuss. We also have our surveyors and our engineers here with us in case there's any questions in relation to that. So, we've come prepared at each meeting with people to discuss. We had four minutes each at the last meeting to address the panel. So, it was fairly quick and hence my getting— I printed the wrong report. So, I'm sorry. But in fact, we have at every stage, as Mike said, we've worked on this. We worked on this since February 2012. I think you've made that point

Thank you. Sorry, if you don't mind if I just jump in on that last point. Just to clarify, you're saying that you did come to council subsequent to the last panel meeting with some material that addressed the resolution of the previous panel, but you're saying that that wasn't dealt with.

You're now coming with that information to seek to discuss that with us now. Is that

Look, we're happy to discuss it today. When we went to the last— I don't want to cast aspersions anywhere.

I'm going to— I think we understand what you're saying. I just wanted to clarify that point. And I think the difficulty we will have with that is we can't really be assessing new material. We have to rely on the council. So if you had information that addressed these matters, that may have had some alternative proposals, really those are matters that you should have lodged formally with the council for them to assess and them to provide us with a recommendation. We're not really a forum able to discuss on the

Run alternative plans. That's fine.

Being an urban designer, I'm interested in the interface with different zones. And while this, your land is the same zone as the land surrounding Ona Stand, different lot sizes are permissible. So across the rear boundary, there's much larger lot sizes, and that's unlikely to change, I understand, because the investigation area finishes at the boundary of your site. So one way through this, and I'm just seeking information from you, and we've got to have our discussion afterwards of what we think is appropriate. But if the rear lots that are up against the rear boundary, and I think there's one, two, three, four, five, six, seven, in the order of 2,000 square metres each. If they were 4,000 square metres, so you lose four lots, that would probably be a better interface with the larger lots to the rear.

And I heard what you said about the visual impact, and I probably agree with you on that. But I'm not quite sure where the ridgeline is to the rear, and just looking at the aerial photograph does look like fairly open country. So the ridgeline must be further to the, what is it, southeast. So I was just thinking along the rest of the boundaries, obviously, I think the interface is quite good, but that is the interface that I would be looking at more closely. And then maybe just answer that question first, whether what you think about there being three or four, whatever it is, 4,000 square metre lots along there rather than the 2,000 square metre lots.

I think that's, I mean, if we came to review at our separate confidential meeting after this, I think that's something we could resolve on if we chose to. So back to what you said

Thank you for your question. I'll open on this, and as you've correctly pointed out, our rear boundary is the end of the review area. Therefore, anything outside of our boundary to the back is an RU1 zoning. Now, it won't alter. What has not been relayed in any of this is that behind us, an RU1 zone in 99% of councils throughout New South Wales is for 40 hectares and greater. It is a primary production area. For some reason, Hawkesbury has called it a 10-hectare area. There is no possible way that primary production can be affected on 10 hectares. The joint regional panel who looked at our adjoining block has actually stated that, that it's not sustainable in the area any longer. Now, putting that aside, every block in Silks Road behind us, not one, not two, not every block does not comply with the RU1 zoning.

The largest lot directly behind us is eight acres. That is the largest lot in the street. From there in Silks Road, we have between seven and 10 lots. Call it seven, seven lots at 700 square metres. So , in fact. We don't feel that our proposal is out of character with what's already in the area. We don't think that it's a transition, and this word transition has come up a thousand times. We need to transition. We're actually in the area of the residential land strategy, and the residential land strategy's focus is to expand the village. So we are expanding the village. If we want to transition to larger lots, it goes beyond the area that Council, Council are the ones who put the lines on the map, who said, This is where you can build.

This is where you can subdivide. This is where you can develop. We didn't come up with that. We've just followed their format the whole way through. So in response to the larger lots,

We

Do have a compromise plan, which is probably not quite where you're at, but we still feel that we're not in a transition. We're in a growth part of the town, or growth part of the village, and what is behind us, whether it had been done 10 years ago or 100 years ago, doesn't conform with the zoning. If we're adjoining, and I live on 25 acres, if I was adjoining, if my property there that we're developing, or Mike and my property that we're developing, if it was adjoining directly 25-acre properties, we would come back and we would probably be more sympathetic to that cause. But what we've put up, Glenn has put that the visual impact is what was raised. We don't believe there is a visual impact.

The 2,000 square metre lots across the back are consistent with what has been mapped on the LEP. Our application went in to Council for our DA with full knowledge that the mapping of the LEP and the gazettal of the position it was in. But if getting it across the line today and not having to go to another area for approval means that we sit down and we change a couple of lines on the map, we're prepared to discuss that.

Sorry, are those rear lots that we're just talking about, are they on your sewer system too ?

The whole property is. Just to put it into perspective , there was a feasibility prepared by our surveyors and engineers who are here that went to Sydney Water. We've got a consent letter back from Sydney Water to have a rising main run to North Richmond. So it's a pump station on, and the pump station is on our adjoining property, the property that we've got currently going through Gateway, which forms part of this DA. But our pumping station is next door. The pumping station then has a rising main runs up and runs down to the plant. Now we have letters of consent from RMS to do the roadworks on the main road all the way to the sewer plant . So that part of it. So every block, every block is catered for, but not only that block, we've catered for our direct precinct of the blocks that we actually have control over.

Thank you

This might

Be my entire mind, I just want to understand. With the riparian zone, there's a lot that, if the riparian zone had even lines through it, there's a lot that sort of juts out into the riparian zone, or that juts out rather than having an even line. Is there— sorry? Well, just, I'm not quite sure what's really going to happen either side, or certainly on the other parcel of yours, but it seems to just keep everything sort of straight and clear might be an appropriate thing to do, but there might be a reason why you're doing this.

Thank you.

The two lot, the two saddle lots that have been created , on the mapping you will see that it says minimum lot size of one hectare for one lot, minimum lot size of 1.5 hectare on the other lot. Our issues on these two lots, and once again this was an 18-month hold-up dealing with Office of Environment and Heritage in relation to what was deemed as a sandstone shale transitional forest, purely from topography maps and not from a site inspection. Once it was resolved that everyone had been out and it took 18 months to get someone on site to have a look at it , we didn't have a sandstone shale transitional forest. We had a riparian corridor. So the lots were actually created in that sizing to allow for buffer zones for a sandstone shale transitional forest, more so than a riparian corridor.

We're only a category one. Coming through that section of the block, hence our riparian corridor should only be 10 metres on either side, but we have allowed 20 metres on one side and 30 metres on the other side before we get to a building envelope. The irregularity of that block at the back was based on it being a sandstone shale transitional forest, which should be altered now, and it was put there by council strategic planners as a building envelope.

Sorry, just quickly, back still on this riparian zone. This is— Yep. That's what you've lodged . Has more detail been mapped of the actual where the creek is ? Because that looks like you've got no riparian zone on one side with that lot.

The actual, the creek line— sorry, the creek line.

What we need to do is get a plan that actually clearly shows where the creek is, and therefore you can, because it probably is too wide there, but it's zero on this side next to the road. So where is the creek? Can

I answer your concerns?

Yeah.

All that mapping, all those plans are in council's hands. Okay They've not been provided to the external contractor to provide a report to you. So we can only talk to the report. Anyway , if you can

Just— because is that lot going to be zero wide because you've got to go 20 metres that way? It needs to be clarified just— Yeah.

That's your subdivision plan. In answer to the question, the creek line is in the centre of that marked riparian area.

Now, the creek line is— can you hold that map up again, sorry, so I can show you. The creek line running basically in a straight line, so from top to bottom, we'll call that a creek line. It's a triple line. It is— it's an overflow. The other side, when you look at the other line, it's just a swale in the ground. So it's of no consequence. But we had to include that as part of the riparian. A point that I would make as well in relation to that, the length of that creek from the start, which is from our next-door property coming from Kermon Road, to where the treatment plant is at North Richmond is three kilometres. Over that three kilometres, our property, that 280 metres across our property, is the only suggested protection area.

We put in a statement of environmental effects. We put in a vegetation management plan. There's a vegetation management plan which is extensive, which allows for 150,000 extra plantings over that area, and we put in an addendum to the statement of environmental effects, which addresses all of those, any concerns in relation to what the riparian area really is.

Yeah, a lot of that area, that bushland corridor, is by default being managed because it's just rural land.

Correct. So

Sure , it's great that you have got a plan of management happening, and that would be the case anyway. But I assume if they were to develop, the same thing would happen. They would have to have a conservation management plan , of course of events.

If I can just add to that, the intermittent watercourses, they, in times of heavy rain, they will flow as creeks, but the riparian zone and the creek is wholly contained within this lot, and the building envelope is over here. So, yeah. Sorry, the— how do you mean, sorry? Yeah

That's right. That's correct. Yeah.

Yeah .

Any more questions from— Okay. Thank you very much, gentlemen. You can sit back down in the audience.

So, Chairman, would the panel like the written submissions, or— I'm in your hands. You can hand those over, thanks.

Thank you.

Do panellists have questions for the council officers?

Yes, Mr Chair. Is there a mechanism taking on board what has been said by the applicant, that they're prepared to have further discussions? Is there a mechanism available to the council officers and/or this panel to enable that process to occur whilst this panel is still sitting, if there is an opportunity for ongoing dialogue between the two? Thank you.

Well, it's a matter for the panel as to what they want to do with the determination of the applicant today. Obviously we're in your hands, but I've been involved in one meeting and there was nothing offered, nothing submitted, nothing lodged, so I have nothing further to show you other than what's in the report at this point.

And just clarifying, the applicant said that they did come to Council to discuss some alternative proposals.

I've been involved in one meeting and there was certainly no discussion or any documents shown or lodged that showed other options. Myself and the manager of planning did have

A meeting. There weren't plans presented. There were some discussions about it , but I think a decision was made that they wanted to take a chance on, you know, wanted to make their arguments for their current proposal. So we've had many discussions. You know, we have looked at— I've put forward options, but I can't— I've advised them that I can't give a guarantee as to what will happen. And at that stage, when that was indicated, that they took that proposal off the table.

Thank you. Any other questions for the staff? Council?

I do have one, just in relation to the fairly critical issue of the interpretation of 4.1(d), I think it is. You heard Mr. Apps' consideration of that. Do you have a response? Yes

Chair. Unfortunately, I don't think that I would concur with that interpretation of the and, and, or position . It would appear to me— Generally, the construction of the planning legislation is that when and is used, you must satisfy all of those things, not one or the other. In this case, the application, as you've heard, has been able to make satisfactory arrangement for effluent disposal for a reticulated sewer. Then the relevant clause here then says, and the area of the lots must not be less than 4,000 square metres. So there is a question mark about that aspect. Seems to me to be quite an illogical outcome if that was to be taken as the interpretation, given how we've arrived at this point with a specific planning proposal taking or changing the lot size maps deliberately to something less than 4,000.

And then further complicating that is that that clause talks about area A being edged heavy blue. My understanding from what's in front of me here, the extract from the LEP is, there's some blue lines on the map, but they certainly don't edge all of that area. So there's some further level of confusion on that point. I suppose my view would be that it might maybe fair and reasonable to give some weight to the planning proposal in the sense of the lesser minimum lot size. I'm not too sure what the situation is with the mapping and the blue area, but certainly the area in question here, there's some blue lines, but they don't edge all of that area. So it's just a further complication.

I'll just mention that. Look, that's just a product of what I printed out for the benefit of the panel. The blue line does extend around that area A. Just like Scott doesn't have the benefit of, he's looking at this. So the blue line extends

Around each of these areas. It's just that on our mapping, I've clicked on this property to get to that property address, and it brings a red line around the boundary. So this would have been like the area shown in green with the blue around it. So the two area A's would have that blue line around it. Fully, it's just that the property boundary is detailed in red.

If I may, then just given that information, I would just reiterate a point I made earlier that would seem an illogical outcome to have gone through the planning proposal and the weight in that process, but then to have no effect given the wording of that particular

Clause.

Okay.

So there's no question that part A is satisfied, so it is satisfied, service by reticulated sewer, correct?

Yes.

And we agree that they're less than 4,000 square metres and it's within area A. Could I just ask, who in the— where did the advice come from, the Department of Planning? Is that legal advice, or is that

Well, this has come about recently as a result of the planning proposal for Two Inverary Road. It's something that council has interpreted it one way, and what Glenn Apps has said about what the theory and the thought process behind it, what it means, what he's saying is correct. The Department of Planning have identified, they've said that this wording is incorrect and that they have mentioned that as a part of the further processing of the planning proposal on that adjoining property, that that clause will need to be examined. We don't have something— Like a legal opinion received from them. We have an email, and so that was what I've tabled to you in there. So, yeah, like it's not formal, it's not legal advice, but that's just something that has come up just recently, and we're just flagging that for the panel's, you know, consideration. Okay, thank you.

Just a point of clarification. On page 26, appendix A, talking about upgrade of the Kermond to North Richmond cycleway.

There's no reference to Carrajong through to North Richmond. That was a proposal. I'm just interested on the fact that it was Kermond to North Richmond. Is it typographical or is there something more there? And perhaps if there is, perhaps I could be seen another time, another place, but it just caught my eye that it was particularly related to Kermond to North Richmond, not Carrajong to North Richmond, nothing more than that. Thank you. Look

I mean, that's probably a reference to—there's a planning agreement that was entered into between the developer and council, and there's references to certain things. There's a certain rate, probably mentioned in the report, I don't know, it's 25 or 30,000, and that's just one of the descriptions of what the funding will go towards. So I couldn't tell you the exact location of it all or the correct names of it, but that's what's referred to in the planning agreement.

If

There are no other questions, thank you very much,

Council staff.

We will now adjourn the meeting for a short break. It's easier for us to leave and go into the next room. You're welcome to stay, and at the completion of that we'll return and you'll hear our deliberations and determination.

Okay, the meeting regime in relation to item 4.

I'd like to move from the chair the following recommendation: that Development Application DA 0545/16 for the demolition of existing structures and construction of a residential flat building comprising 40 residential units and basement parking at 122 to 132 Macquarie Street, Windsor be refused in accordance with the recommendations in the agenda for the reasons as outlined in the staff recommendation, with the following additional reason: the proposed development lacks a reasonable level of design quality, especially considering the heritage context of the area. For example , the proposal lacks diversity of design in the various building elements, including over-repetitiveness of the same design for windows, balustrades and balconies, a lack of sight lines from the street between buildings to the rear, a lack of acoustic treatment to street-facing rooms such as double glazing for windows and enclosed balconies, building separation and landscape quality.

I

Move that recommendation. Any discussion prior to voting? If not, can I have a show of hands, those in favour of the recommendation? Yes. Those against

Nil.

So

Moved . In reaching this recommendation, the panel notes that the applicant's architect requested that the panel defer a decision of this matter to allow the applicant the opportunity to discuss amendments to address the reasons for refusal, including the removal of the fourth floor, and to consider other matters such as privacy, setbacks, traffic and tree removal. Notwithstanding this, the panel considers the deficiencies of the current proposal to be so fundamental as to require a redesign which adopts a different design approach to address the reasons for refusal. Thank you for your attendance. That's the matter

Dealt with.

The final agenda item is item five,

Which is pecuniary interest return.

The recommendation is that the section 4.15 pecuniary interest returns be received and noted, and that the section 4.15 pecuniary interest returns be made available on Council's website. I move that recommendation. Any discussion? If not, those in favour?

That is moved. That is adopted.

That is the close of the meeting. Thank you all for your attendance. Thank you, Council staff, for your assistance.