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A better approach would be toalign the MDDG so that it applies in the same way that SEPP 65 and theApartment Design Guide operate. This would avoid the one size fits allapproach and would ensure that all councils and local communities are equallyimpacted and given the opportunity to prepare their own medium density housingstrategies. The HLEP is one of the few environmental planninginstruments in NSW that permits residential flat buildings (RFBs) in the R3Zone. As the highest and best use, lower yield housing types are lessattractive to developers who mainly seek to develop two storey walk upflats.
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The site is subject to existing easements for services,electricity and a right of carriageway which extend (on paper but are unformed)from the road reservation off McCallums Road, Berrilee to the rear of theexisting waterfront lots (Lot 4 and Lot 5 DP ). The proposed subdivision includes an easement forelectricity identified as E1 and E4 which would extend the existing powersupply line at the rear of the existing Calabash Point waterfront lots to theproposed lots. The proposal would provide for the extension of the riversettlement of Calabash Point with the four proposed lots providing for futuredwelling houses. A garbage waste collection service is not provided for theriver settlement of Calabash Point.
Consent authorities have flexibility to considerinnovative solutions when assessing development proposals, to assist achievegood planning outcomes. The provisions of a development control plan made for thatpurpose are not statutory requirements. A heritagestatement, completed by Econstruct Consulting, dated July 2016 was included inthe application. The statement notes that the building and landscapingmaterials selected for the dwelling house would be consistent with thesurrounding environment including face brick, window brick seals, sandstone subfloor walls and roof tiles. In addition, it notes that the architectural designof the dwelling would be sympathetic to neighbouring dwellings due to the useof the proposed front verandah, porch, pitched roof and ridge shape. Whilst the proposed SEPP amendments and design guide havecome some way to identifying a standard suite of complying controls, they arenot well suited to middle ring infill areas.
The application has been assessed against the requirementsof Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005. This Policy provides general planning considerations and strategies toensure that the catchment, foreshores, waterways and islands of Sydney Harbourare recognised, protected, enhanced and maintained. The proposed earthworks are satisfactory in respect toClause 6.2 of HLEP subject to recommended conditions. The objective of Clause 6.2 Earthworks in the HLEP is“to ensure that earthworks for which development consent is required willnot have a detrimental impact on environmental functions and processes,neighbouring uses, cultural or heritage items or features of the surroundingland”. In assessingthe impact of the proposal in regard to the Beecroft-Cheltenham Conservationarea, the site is surrounded by a mix of single and two storey dwelling housesof various sizes and architectural styles. A federation bungalow is located tothe east, a rendered two storey house to the south and a single storeyweatherboard house to the north.

An Arborist Impact Assessment(AIA), prepared by McArdle Arboricultural Consultancy was submitted on 24August 2016 as requested by Council. The AIA notes that thedevelopment would necessitate the removal of two non-native Liquid Amber trees(Liquidambar styraciflau) which are located within the proposed buildingenvelope of the dwelling. Council’s tree assessment notes that anothernon-native Prunus avium tree would be significantly impacted by thedevelopment and would be required to be removed. The AIA and Council’stree assessment note that a further ten trees on the subject and adjacent siteswould have the potential to be impacted by the development unless appropriatetree protection measures are undertaken. The application has been assessedagainst the requirements of State Environmental PlanningPolicy (Exempt and Complying Development Codes) 2008 – NSW Housing Code.The Policy provides exempt and complyingdevelopment codes that have State-wide application. The Policy also identifiestypes of development that are of minimal environmental impact that may becarried out without the need for development consent and types of complyingdevelopment (including dwelling houses) that may be carried out in accordancewith a complying development certificate.
Part 2 of this Plan contains general planningconsiderations and strategies requiring Council to consider the impacts ofdevelopment on water quality, aquaculture, recreation and tourism. The proposed wrap-around balconies do not comply with theADG privacy separation design criteria and require screening which defeats thearticulation prescriptive measures of the HDCP. To ensure compliance andmaintain necessary articulation a condition is recommended for the deletion ofwraparound balconies for 2br Units 8, 9, 12, 13, 16, 17, 20, 21, 24, 25, 28 and29. The resulting 12m2 balcony private open space areas would complywith the minimum area requirement. The proposed building includes a central lift providingaccess to eight units in accordance with the ADG best practice for amaximum of eight units per lift. The proposed ‘T’ configuration ofthe corridor and location of the lift lobby would provide adequate circulationspace, natural light access and appropriate social amenity for residents.

The Codes SEPP and MDDG go some way towards improving thedesign controls and are generally consistent with the integrated housingrequirements of Growth Centre Precincts. However, the controls are not wellsuited to existing middle ring suburbs and would be inconsistent withCouncil’s approach of encouraging medium density housing within alandscape setting. The following minimum development standards need to be metfor multi dwelling housing (terraces), manor homes and subdivision to beconsidered as complying development. The Medium Density Housing Code amendments will only applyto land zoned R3 Medium Density Residential within the Hornsby LGA whichaccounts for 56ha or approximately 1% of all residentially zoned land (thisfigure includes land in Epping and Carlingford now in the City ofParramatta). Most R3 zoned land is already developed, with potentialremaining in the medium density housing precincts of Hornsby North, Asquith andMount Colah. At present, complying development cannot be carried out oncertain land, such as heritage conservation areas, foreshore areas andenvironmentally sensitive areas (including National Parks and criticalhabitat).
The proposal meets the desired outcomes of Part 3.1.5 SunlightAccess of the HDCP and is considered acceptable. The proposal meets the desired outcomesof the Part 1C 1.4 Earthworks and Slope of the HDCP and is consideredacceptable. The proposal meets the desired outcomes of Part 3.1.8 DesignDetails in the HDCP and is considered acceptable. Subject to the deletion of the lap pool, the proposal wouldmeet the desired outcomes of Part 3.1.2 Setbacks of the HDCP and is consideredacceptable.

The site is adjacent to the river settlement of CalabashPoint which is a water access only river settlement of approximately 60waterfront dwellings. On 24 June 2015, the NSW RuralFire Service advised  assessment of suitability of water access for firefightingand evacuation was based on a minimum depth of 700mm at Median Low Water Springtide (MLWS). On 9 April 2014, at a meetingwith Council officers, the applicant was advised the application forsubdivision could not be supported following NSW Rural Fire Service advice ofconcerns regarding access for firefighting. The stormwater drainage systemfor the development must be designed in accordance with Council’s CivilWorks – Design and Construction Specification 2005 and connected to theexisting Council piped drainage system.
The proposed non-compliance would not create a precedent for similarsubdivision and is acceptable in the circumstances. The NSW Rural Fire Servicegranted its General Terms of Approval for the issue of a ‘Bushfire SafetyAuthority’ under Section 100B of the Rural Fires Act 1997 subjectto recommended conditions under Schedule 1 of this report. The proposed APZ and future dwellings would extend the riversettlement of Calabash Point and change the scenic quality of Calabash Bay. Theimpact on scenic quality would be mitigated subject to appropriate design offuture dwellings. To ensure operation of the proposed pontoons would not requiredeepening of the channel a condition is recommended for the operation to belimited to vessels with a draft of not more than 300mm.

The report includes an assessment of the trees recommendedfor removal and replacement and the trees to be retained within thebiodiversity area at the rear of the site. The trees to be retained includeTree No. 50 – Angophora costata (Smooth barked apple) which isidentified as significant. The proposed HRV vehicle access design is for access to theproposed large Unit 1 directly off the Gundah Road frontage. Unit 1 includescar parking on the apron forecourt with 17 spaces in accordance with the HDCPcar parking requirement. The proposed loading dock (13m x 6m), truckmanoeuvring area and vehicle crossing are designed for HRV access.
Any future non-compliance would be subject to complianceinvestigations by Council. The site is surrounded by warehouse and distributionactivities, concrete pump manufacturer, mechanical repairs, self-storage unitsand pharmaceutical industry. The northern side of Sefton Road opposite the siteis a low density residential area with single and two storey dwelling houses.
All work on site (includingdemolition and earth works)  must only occur between 7am and 5pm Monday to Saturday(unless otherwise approved in writing by Council due to extenuatingcircumstances). The overland flowpath is to beconstructed generally in accordance with the plans prepared by EngineeringStudio Civil and Structural. The details of the adaptableunits Nos. 2, 5, 7, 8, 13, 15, 16, 21, 23, 24 and 29 must be provided with theConstruction Certificate Plans.