5 gardenia close, bolwarra heights

Officers Reports 26 August 2008

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File No: DA 08-1225 Attachments: Locality Plan

Development Plans Submissions Applicant’s Response to Submission

Responsible Officer: David Simm Manager, Development & Environment

Author: Ellin Blackwell District Environmental Health & Building

Surveyor

Applicant: Adam & Kristy Bidner

Proposal: Shed

Location: Bolwarra Heights

Zone: 2(a) Residential

EXECUTIVE SUMMARY Development consent is sought from Council for a garage at 5 Gardenia Close, Bolwarra Heights. The subject land is zoned 2(a) Residential under Maitland Local Environmental Plan, 1993. A garage is a permissible form of development in the 2(a) Residential Zone with Council consent and is consistent with the objectives of the zone. The proposed garage has a floor area of 108 square metres and an overall height of 3.875 metres. The garage is to be clad with colourbond sheeting, dune in colour with woodland grey roof and trims. The proposed development was notified for a period of 7 days between 25 June 2008 and 2 July 2008. One (1) submission has been received by Council which relates to the location of the structure being outside the building envelope designated in the Instrument Setting Out Terms Of Easements Intended To Be Created Pursuant to Section 88B Of the Conveyancing Act 1919 (88B Instrument), and the size of the structure being larger then that permitted under Council’s Large Sheds & Garages in Residential Zones Policy. These issues have been considered and addressed in the assessment section of this report. They are not considered to be significant enough to warrant refusal of the application.

Officers Reports 26 August 2008 DA 08-1225 Shed Lot 96 DP1056433 5 Gardenia Close, Bolwarra Heights (Cont)

Following assessment of the proposal under 79(c) of the Environmental Planning and Assessment Act 1979 the application is recommended for approval.

OOFFFFIICCEERR''SS RREECCOOMMMMEENNDDAATTIIOONN THAT: DA 08-1225 for Garage on Lot 96, DP1056433 5 Gardenia Close, Bolwarra Heights be approved, subject to the conditions of consent set out in the attached schedule.

INTRODUCTION The subject development application proposes to erect on the site a metal garage featuring three (3) roller doors and one (1) personal access door. The 3532 square metre site is currently vacant however a development application has been submitted nominating the proposed location of a dwelling which is to be located forward of the shed and within the designated building envelope set by the 88B Instrument. The site is accessed via an existing concrete access handle extending from Gardenia Close. There is very little of this allotment visible from the street. The applicant has responded to the objection received by letter (Attachment 4) which states in summary that the location of garage as proposed is the best location for the structure as minimal vegetation would need to be removed, minimal earthworks would be required and the building envelope (area designated ‘E’ set by the 88B Instrument) is not large enough to contain both a dwelling and garage. The applicant has provided a flora and fauna report in support of the proposal (refer Attachment 5) The setbacks for the garage are consistent with the provisions of the Council’s Large Sheds and Garages Policy. PROPOSAL The application proposes to erect a metal garage at 5 Gardenia Close Bolwarra heights. The structure is to be sited upon a part of the 3532 square metre allotment. Currently the allotment is vacant, however a formal development application has been lodged to Council for approval of a single storey dwelling. The proposed garage is to have a floor area of 108 square metres and an overall height of 3.875 metres. The garage is to be clad with colourbond sheeting, dune in colour with woodland grey roof and trims. There are similar size sheds located on the following surrounding properties:-

• No. 29 Tocal Road, Bolwarra Heights; • No. 2A Berrinda Close Bolwarra Heights (adjoining property); and • No. 6 & No. 7 Berrinda Close Bolwarra Heights.

PLANNING ASSESSMENT The proposal has been assessed under the relevant matters for consideration detailed in Section 79C(1) of the Environmental Planning and Assessment Act, 1979 as follows:


Section 79C(1)(a)(i) provisions of any environmental planning instrument

Local Environmental Plan The subject land is zoned 2(a) Residential under Maitland Local Environmental Plan 1993. The proposed development is a permissible land use in the 2(a) zone with Council consent. The proposal is considered to be consistent with the zone objectives. Hunter Regional Environmental Plan The proposed development is considered to be consistent with the aims and objectives of the Hunter Regional Environmental Plan. State Environmental Planning Policies Not applicable. Section 79C(1)(a)(ii) any draft environmental planning instrument that is or has been placed on public exhibition Not applicable. Section 79C(1)(a)(iii) any development control plan Council’s DCP Chapter West Bolwarra Heights applies to the subject land. The development has been assessed against this chapter and complies with all the provisions. Section 79C(1)(a)(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph) Not applicable. Section 79C(1)(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality The design is considered as appropriate for the site and the development’s visual impact will be minimal due to the large allotment size and its siting in relation to surrounding development. Colours used will be similar to those used on surrounding buildings and non reflective. Section 79C(1)(c) the suitability of the site for the development The 3523 square metre site is considered suitable for the erection of the garage due to the setback of the allotment from the street and the significant size of the lot. Section 79C(1)(d) any submissions made in accordance with this act or the regulations

Public Submissions The development application and accompanying information were placed on public exhibition for a period of 7 days from 25 June 2008 to 2 July 2008. As a result of the notification process, a total of one (1) submission was received and is provided as Attachment 3 of this report. The main issues raised by the objectors are summarised below and comment provided:


The proposed structure where proposed is outside the designated building envelope set by the 88B Instrument.

Planner's Comment The property is affected by a covenant seventhly referred to in the Instrument Setting Out Terms Of Easements Intended To Be Created Pursuant to Section 88B Of the Conveyancing Act 1919. The terms of the restriction are such that development and removal of trees are restricted within the area designated “T”, the shed is proposed to be located within this area. Further to this covenant are those (fifthly and sixthly referred to) which clearly indicate areas where building and driveways/landscaping are permitted. The 88B Instrument and Deposited Plan which designates the building envelopes has been attached to this report as Attachment 6. In reviewing the subdivision file DA02-3166 that required the covenants to be created, it is determined that the restrictions have been placed on the allotments to ensure that where possible as much of the woodland vegetation is to be retained. The applicant of DA02-3166 prepared a plan nominating building envelopes which was approved as part of that application. The plan is attached to this report as Attachment 7. This plan shows that the location of the proposed shed is completely void of vegetation. Site investigations revealed that there was some new immature vegetation in this area that would need to be removed. Furthermore the areas as designated in the 88b restriction would require a higher number of trees to be removed then the owners of the property would like. As part of their supporting documentation the owners have provided a plan (refer Attachment 8) of the proposed driveway location. The location of the driveway as proposed would ensure that more trees would be retained then if they were forced to comply with the covenants on the land. The Small Site and Minor Development Assessment report nominates a small group of trees to be removed for the construction of the driveway. The photograph attached (Attachment 9) better describes this group of trees and the little significance they have on site. The original Eight Part Test Report provided with the subdivision application suggests that the land may be indicative of a transition zone from the Hunter Lowland Redgum Forest. The report provided in 2008 by General Flora and Fauna nominates one “Forest Red Gum” on site which is located within the area designated for trees to be removed, this tree will be retained as part of this proposal. The ecological community has been destroyed due to most of the native vegetation in the local area being heavily fragmented by previous rural activities into small remnant patches. Much of this site has been disturbed and cleared of natural native vegetation. Weeds such as Lantana and exotic pasture grasses area common on the site. The native trees on site however will provide forage, refuge and nest habitat for a range of native fauna including birds, insectivorous bats, flying-foxes, possums and gliders, it is therefore important that the vegetation corridor be maintained. As the proposal stands this would be the case, by complying with the covenants more vegetation would need to be removed and the vegetation corridor would be impacted. As stated by the applicant the Terms of the Restriction do not preclude Council from assessing and approving development in the area designated “T”. The Terms of Restriction merely require a proponent to obtain the consent of Council prior to development/construction in the area designated “T”. The wording of the covenant is such that consent may be granted should Maitland City Council give written approval.


It is considered that in this instance approval should be granted as the intention of the covenant is not being contravened by ensuring the retention of woodlands vegetation.

Structure larger than that permissible under Council’s Large Sheds & Garages in Residential Zone Policy.

Planner's Comment The proposed development is outside the provisions of the Large Sheds & Garages in Residential Zones Policy, the shed being 108 metres square and 3.875 metres high, in lieu of the 70 square metres and the 3.5 metre height required by the policy. There has been a precedent set in the locality, with a number of sheds approved ranging in size from 84 square metres to 132 square metres and 3.91 metres in height to 5.7 metres. Generally these sheds have been approved and a variation to policy permitted on the basis that the size of the allotments in this locality are large acre allotments and can accommodate larger sheds. The proposed shed is considered consistent with those approved in the locality. The proposed shed is considered acceptable given the shed will be obscured by a future residence and existing mature landscaping. It will also be constructed of materials that are sympathetically coloured to the environment. The shed will create minimal overshadowing to adjoining residential premises and the topography of the land ensures that occupants of adjoining properties will not lose existing views.

Setback of shed is not sufficient given the size of the allotment. Planner’s Comment The Large Sheds & Garages in Residential Zones policy requires a minimum of five hundred (500) millimetres to side and rear boundaries, the shed proposed has a setback of one (1) metre from side and rear boundaries, twice that required by the policy. It is considered that the one (1) metre setback to this side boundary is sufficient as the height only exceeds the height provisions of the policy by thirty-eight (38) centimetres, there would be no significant overshadowing issues created by the height variation and therefore no cause to request a larger setback then that proposed from this boundary. The allotments are greater then the average sized residential allotments, they however remain zoned 2(a) Residential and therefore only require a five hundred (500) millimetre setback to side and rear boundaries. Submissions from public authorities Not Relevant Section 79C(1)(e) the public interest The proposed development is consistent with the provisions of the LEP and broader planning strategies. The proposed development does not present an imposition on the public interest in terms of environmental, social or economic costs.


FINANCIAL IMPLICATIONS This matter has no direct financial impact upon Council's adopted budget or forward estimates. POLICY IMPLICATIONS This matter has no specific policy implications for Council. STATUTORY IMPLICATIONS Statutory implications relating to assessment of the subject application have been addressed in the body of the report CONCLUSION An assessment of the application has been carried out under Section 79C(1) of the Environmental Planning and Assessment Act, 1979 as amended. The proposed development is considered satisfactory in terms of the relevant matters for consideration under the Act and the development application is recommended for approval.


SCHEDULE OF CONDITIONS Standard General Provisions - Shed Reason for Conditions The objectives of the following conditions is to draw to the attention of the applicant and owner their responsibilities to comply with various provisions of the Environmental Planning and Assessment Act, 1979, Environmental Planning and Assessment Regulations, 1994, Local Government Act 1993; Regulations; Building Code of Australia and Local Policies relating to building construction and maintenance. 1 The applicant is required to submit to Council ‘Notice of Commencement’ at least

two (2) days prior to the commencement of construction works.

2 Inspections are required to be carried out in accordance with the inspection schedule as detailed with the attached construction certificate information sheet.

3 The shed, or any portion of the shed, shall not be occupied until an occupation certificate has been issued.

4 All building work must be carried out in accordance with the provisions of the

Building Code of Australia.

5 (1) Building work that involves residential building work (within the meaning of the Home Building Act, 1989) must not be carried out unless the principal certifying authority for the development to which the work relates:

(a) in the case of work to be done by a licensee under that Act:

(i) has been informed in writing of the licensee's name and contractor licence number, and

(ii) is satisfied that the licence has complied with the requirements of Part 6 of that Act, or

(b) in the case or work to be done by any other person;

(i) has been informed in writing of the person's name and owner-builder permit, or

(ii) has been given a declaration, signed by the owner of the land, that states that the reasonable market cost of the labour and materials involved in the work is less than the amount prescribed for the purposes of the definition of owner-builder work in Section 29 of that Act, and is given appropriate information and declarations under paragraphs (a) and (b) whenever arrangements for the doing of the work are changed in such a manner as to render out of date any information or declaration previously given under either of those paragraphs.

(2) A certificate purporting to be issued by an approved insurer under Part 6 of the Home Building Act, 1989 that states that a person is the holder of an insurance policy issued for the purposes of that Part is, for the purposes of this clause, sufficient evidence that the person has complied with the requirements of that part.


6 All excavations and backfilling associated with the erection or demolition of a building must be executed safely and in accordance with appropriate professional standards and must be properly guarded and protected to prevent them from being dangerous to life or property.

HEALTH & AMENITY Reason for Conditions The objectives of the following conditions are to ensure that a building is so designed and constructed so that it and adjoining properties are not subject to dampness and are weatherproof, provide adequate toilet and washing facilities, room sizes are adequate for the use and purpose, light ventilation is adequate for the occupants and adequate insulation against noise transmission is provided.

7 Roof waters are to be disposed to the street gutters or approved stormwater systems/catchments, as applicable. Alternative disposal of roof waters may be permissible only in accordance with Council policy.

SITE CONSIDERATIONS Reason for Conditions The objectives of the following conditions are to provide for a safe and healthy environment for the occupants of the allotment and to maintain an adequate level of safety and cleanliness for the local environment.

8 If an excavation extends below the level of the base of the footings of a building/structure on an adjoining allotment of land, the person causing the excavation to be made:

i) Must preserve and protect the building/structure from damage, and

ii) If necessary, must underpin and support the building/structure in an approved manner, and

iii) Must, at least 7 days before excavating below the level of the base of the

footings of a building/structure on an adjoining allotment of land, give notice of intention to do so to the owner of the adjoining allotment of land and furnish particulars of the excavation to the owner of the building/structure being erected or demolished.

The owner of the adjoining allotment of land is not liable for any part of the cost of work carried out for the purposes of this condition, whether carried out on the allotment of land being excavated or on the adjoining allotment of land. (Includes a public road and any other public place).

9 A sign must be erected in a prominent position on the work site:

(i) stating that unauthorised entry to work site is prohibited, and

(ii) showing the name of the person in charge of the work site and a telephone number at which that person may be contacted during work hours.

Any such sign is to be removed when the work has been completed.


This condition does not apply to:

(i) building work carried out inside an existing building, or

(ii) building work carried out on premises that are to be occupied continuously (both during and outside working hours) while the work is being carried out.

10 The site is to be cleared of all building refuse and spoil immediately after completion of the building.

11 No building materials, refuse or spoil is to be deposited on or be allowed to remain on Council’s footpath.

12 Rubbish generated from the development is to be suitably contained on site at all times. No rubbish shall be stockpiled in a manner which facilitates the rubbish to be blown off site.

13 Soil erosion and sediment controls are to be provided in accordance with Council’s policy prior to and during the construction of the proposed development.

14 The applicant is required to notify Council in writing prior to commencing building operations, of any existing damage to kerbing and guttering and/or footpath paving associated with the subject Lot. The absence of such notification signifies that no damage exists and the applicant shall therefore be liable for the cost of the repair of any damage to kerbing and guttering or footpath paving which may be necessary after completion of the building operation.

ANCILLARY PROVISIONS Reason for Conditions The objectives of the following conditions are to provide more specific requirements for particular points of buildings or structures and to compliment provisions of related legislation.

15 Hours of Work:

Unless otherwise approved by Council in writing; all building work associated with this approval shall be carried out between 7.00am and 6.00pm Monday to Fridays and 7.00am to 5.00pm on Saturdays with no work permitted on Sundays or Public Holidays that may cause offensive noise.

SCHEDULE OF ADVICE 16 The owner should note that the issue of development consent does not amount to

a release, variation or modification by Council of any covenant applicable to this property and that any action taken by the applicant in accordance with the consent which results in the incurring of any loss or damage by way of breach of the covenant will not be the responsibility of Council.


Officers Reports

DA 08-1225 SHED LOT 96 DP1056433 5 GARDENIA CLOSE, BOLWARRA

HEIGHTS

Locality Plan

Meeting Date: 26 August 2008

Attachment No : 1

Number of Pages : 1


Officers Reports


HEIGHTS

Development Plans


Attachment No : 2

Number of Pages : 2


Officers Reports


HEIGHTS

Submissions


Attachment No : 3

Number of Pages : 2


Officers Reports


HEIGHTS

Applicant’s Response to Submission


Attachment No : 4

Number of Pages : 5


Officers Reports


HEIGHTS

Small Site & Minor Assessment


Attachment No : 5

Number of Pages : 7


Officers Reports


HEIGHTS

Deposited Plan & Instrument Setting Out Terms of Easements intended to

be created pursuant to Section 88B of the Conveyancing Act 1919


Attachment No : 6

Number of Pages : 3


Officers Reports


HEIGHTS

Plan Approved by Council Nominating trees that can be removed


Attachment No : 7

Number of Pages : 1


Officers Reports


HEIGHTS

Proposed Dwelling Location Nominating Retention of Trees


Attachment No : 8

Number of Pages : 1


Officers Reports


HEIGHTS

Photograph Nominating Trees to be Removed


Attachment No : 8

Number of Pages : 1

5 gardenia close, bolwarra heights

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