CONCILIATION CONFERENCE NOTES

www.thehills.nsw.gov.au

PROPOSAL:

Development Application DA 1251/2010/ZB

Proposed Six Lot Residential Subdivision

PROPERTY:

Lot 31 DP 1138282
Ashmead Avenue CASTLE HILL NSW 2154

APPLICANT:

North Western Estates Pty Ltd

DATE HELD:

Wednesday 1 December 2010

ATTENDEES:

Andrew Brooks Council’s Manager Subdivision and Development Certification (Chair)

Ben Hawkins Council’s Subdivision Coordinator (Council Officer)
AB (Applicant)
Residents (19)

APOLOGIES:

Councillor Thomas (Mayor)

Councillor Burnett
Councillor Hay
Councillor Preston
Councillor Taunton

START:

7:00pm

FINISH:

8:15pm

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 CONCILIATION
RECORD OF MEETING: CONFERENCE NOTES
The conference commenced with the Chair welcoming those in attendance and introducing the
Council staff in attendance and outlining their roles:

- Mr Andrew Brooks, Council’s Manager Subdivision and Development Certification, who

confirmed that he was aware of the application and its associated issues, however his
role at the Conciliation Conference was to facilitate discussion and to ensure that
debate occurs in a productive manner.

- Mr Ben Hawkins, Council’s Subdivision Coordinator, the officer assessing the application
and who will be preparing a report; and

The applicant, Mr AB, was also introduced.

Apologies from the Mayor Councillor Thomas, Councillor Burnett, Councillor Hay, Councillor
Preston and Councillor Taunton were acknowledged by the Chair.

The Chair then explained the objectives of the Conciliation Conference, being to provide open
and frank discussion. It was explained that it was not a decision making forum but provides
opportunity for each party to explain and respond to concerns, participate in the decision
making process and, where possible, reach agreement.

The Chair then invited Ben Hawkins to provide a description of the current application and the
history of the site. Mr Hawkins explained that:

- The subject site is zoned Residential 2(b). The proposed subdivision is preceded by an
existing Court approval issued in June 2008 pursuant to NSW Land and Environment
Court Proceedings 11195 of 2007 upholding an appeal against the deemed refusal of
DA 270/2008/ZB by Council. The approval issued by the Court differed from the plan
initially submitted to Council with DA 270/2008/ZB in August 2007 in that the number
of lots proposed to be created was reduced from 41 to 31, including the creation of
proposed residue lot 31 which was intended to contain, preserve and maintain the
existing flora and fauna evident on the site. The Court judgement did however note that
proposed lot 31 is to be created on a provisional basis and foreshadowed the
submission of a further application to subdivide this lot.

- A previous development application was lodged in May 2009 over the subject site
pursuant to DA 1459/2009/ZB seeking to create seven residential lots, including the
extension of Ashmead Avenue to connect to St Marks Avenue/ Cumberland Avenue. A
Conciliation Conference for this application was held in July 2009, with most of the
attendees from the current Conciliation Conference in attendance. Council’s assessment
of this application concluded that the area of retained vegetation was too small and the
applicant was advised that the application will not be supported on flora and fauna
grounds. In response to these concerns, the subject application has been prepared and
lodged, reducing the number of proposed lots from seven to six and removing the
extension of Ashmead Avenue to connect to St Marks Avenue/ Cumberland Avenue.
One of the six proposed lots, proposed lot 205, includes a restricted development area
3755m2 in size containing the vegetation proposed to be retained.

- Mr Hawkins also explained the assessment process with respect to the flora and fauna
considerations for the application. Prior to the application being lodged, the NSW
Department of Environment, Climate Change and Water issued the applicant with
“Director General’s requirements” for a Species Impact Statement relating to the
proposed development. The Department provided Council with a copy of these
requirements. A Species Impact Statement is required when an assessment of
significance carried out in accordance with the objectives of Section 5A of the
Environmental Planning and Assessment Act 1979 in relation to the impacts on flora
and fauna as part of a proposal identifies that a significant effect is likely to result from
the development proceeding. The application was supported by a Species Impact

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 Statement inCONCILIATION
accordance with the CONFERENCE
above requirements. NOTES
Should Council decide to
approve the subdivision, concurrence from the Department will be required prior to a
consent being issued.

The Chair then opened the floor to the residents to raise their concerns. In order, the following
matters were heard and discussed:

1. Mr K-- of XXXXXXXXXXX raised concern with the fact that the through road
connection from Ashmead Avenue to St Marks Avenue/ Cumberland Avenue had been
removed from the current plan. He raised concern with the number of vehicles expected
in Ashmead Avenue should only the single connection be provided to Tuckwell Road
servicing the residences in Ashmead Avenue, Wychwood Place and Endeavour Close
west of the subject site. He also advised that the majority of the residents in this area
were of the assumption that Ashmead Avenue would always be extended to St Marks
Avenue/ Cumberland Avenue as part of the development of the subject site.

2. Mr K-- also advised that construction traffic associated with the dwellings currently
under construction in Ashmead Avenue currently could not turn around in the cul-de-
sac head at the end of Ashmead Avenue and were instead driving through a number of
the empty lots to Cumberland Avenue, which would not be possible once these lots are
developed.

3. Mr K-- also suggested that too much emphasis was being placed on the vegetation
present on the site, at the expense of other considerations, such as the road connection
discussed above.

4. Mr AH of XXXXXXXXXXX expressed an opposing view, and supported the

proposed retention of the cul-de-sac head in Ashmead Avenue.

5. Mr AH raised concern with the loss of habitat for the six threatened fauna species
referred to in the flora and fauna reporting undertaken as a result of the subdivision.

6. Mr AH then referred to Council’s publicly available draft uncertified 2010 Local

Environmental Plan which he felt sought to retain the Castle Hill Creek biodiversity
corridor on the opposite side of Tuckwell Road via a proposed E4 zoning. He felt that
the site was connected to this biodiversity corridor and not fragmented, as argued in
the application. He suggested that a similar zoning should be considered for the subject
site to reflect this connection.

7. Mr Hawkins briefly advised on the status of the draft uncertified 2010 Local
Environmental Plan and confirmed that as it had not yet been placed on public
exhibition it does not need to be considered in the assessment of an application under
Section 97C of the Environmental Planning and Assessment Act. It was advised that the
draft uncertified 2010 Local Environmental Plan would likely be placed on exhibition in
early 2011.

8. Following the meeting, the zoning of land on the opposite side of Tuckwell Road was
investigated further. The same area proposed to be zoned E4 in the draft uncertified
2010 Local Environmental Plan is currently zoned Residential 2(d) pursuant to Council’s
2005 Local Environmental Plan. The objectives of these zones are generally reflective of
one another, in that they seek a less intensive form of residential development in
response to the environmentally sensitive nature of the site. In this respect, the draft
uncertified 2010 Local Environmental Plan does not seek to change the existing zoning
regime or standing of the Castle Hill Creek biodiversity corridor from that which exists
currently.

9. Mr AH raised concern with the fact that the area of vegetation being retained was
1/3 of that retained by the Court.

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10. Mr AH raised CONCILIATION CONFERENCE
concern with the fact that the bushfire reportNOTES
referenced the need
for a “1.8m high colorbond fence” which would restrict the movement of fauna between
the site and the Castle Hill Creek biodiversity corridor opposite.

11. Mr AH then advised that a number of residents had spoken to an independent

ecological consultant, Mr Ambrose, who had indicated to them that the removal of
vegetation proposed should be offset by the retention of vegetation offsite through a
bio-banking process, and that the application should be assessed with respect to the
applicable federal legislation, being the Environmental Protection Biodiversity
Conservation Act, in additional to the applicable state legislation already discussed
above.

12. The Chair briefly explained that the bio-banking legislation was available as an
alternative to the conventional assessment of significance pursuant to Section 5A of the
Environmental Planning and Assessment Act 1979 and the preparation of a Species
Impact Statement with respect to the Threatened Species Conservation Act processes,
and that the applicant has on this occasion decided to proceed with the later.

13. The Chair also briefly advised that consideration of the applicable federal legislation,
being the Environmental Protection Biodiversity Conservation Act, was a matter for the
applicant to address independently of Council’s assessment of the proposal with respect
to the applicable state legislation, which also requires concurrence from the NSW
Department of Environment, Climate Change and Water as discussed earlier.

14. Mr H-- of XXXXXXXXXXX raised concern with the Species Impact Statement
submitted in support of the application and requested that it be independently
reviewed.

15. The Chair responded that a peer review was not required as the report would be
assessed by Council staff. In addition, should the application be approved, concurrence
from the NSW Department of Environment, Climate Change and Water is also required.

16. There was concern raised with the fact that the site, specifically at the end of the cul-
de-sac in Ashmead Avenue, was not maintained currently and as a consequence it had
become an area for unsound behaviour.

17. The Chair responded by stating that this was a matter that should be reported to, and
dealt with by, the police.

18. A number of residents questioned how the restricted development area within proposed
lot 205 would be maintained.

19. At this point, the Chair suggested that the applicant, Mr AB, respond to the
concerns raised.

20. Mr AB proceeded to outline the process that lead to the current application
being submitted. The Species Impact Statement identified two vegetation communities
present on the site, the majority of which was in a poor condition with strong weed
invasion. The best quality vegetation was identified and accepted to be located in the
northern portion of the site, hence why the area currently proposed to be retained is
located as shown on the plan. He explained that the area being retained was
approximately 40% of the subject site, and that should the application be approved, the
area would be restored by removing the existing driveway and revegetating the area.
With ongoing management, the area will be a viable stand of the two vegetation
communities present. He explained that this ongoing management would be enforced
through the imposition of a restriction and a positive covenant on the title of the
property binding the owner to their obligations under the vegetation management plan
that will need to be prepared and submitted should the application be approved.

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21. CONCILIATION
Mr AB also explained that they had CONFERENCE NOTES
investigated the possibility of the area
proposed to be retained being made a public reserve by reviewing 20 to 30 similarly
sized small public reserves in the locality. This investigation showed that those reserves
similar in size could not sustain a viable vegetation community without a level of
ongoing maintenance that could not be enforced if it was a public reserve.

22. With respect to the previous Court judgement and the development potential of the
subject site, Mr AB explained how the subject site came to exist as part of the
previous Court process. The Court appeal was lodged against Council’s deemed refusal
of the previous application for 41 lots, DA 270/2008/ZB. As part of the Court appeal
process, both Council and the applicant engaged their own ecological consultants. He
stated that both experts agreed that the proposal was acceptable specifically with
respect to the impact on the two micro-bat species recorded on the site; however the
experts could not reach an agreement on the two vegetation communities present on
the site. In order to obtain an approval from the Court, the applicant made the decision
to amend the plan to exclude the subject site area from the preceding proposal, so that
it could be the subject of further investigation as part of a later application, such as the
subject application. The Court judgement reflected this approach.

23. Mr AB advised that the reporting carried out did not agree with the views of
the objectors in that the vegetation on the site is not connected to the Castle Hill Creek
biodiversity corridor located on the opposite side of Tuckwell Road. Instead, the
vegetation is fragmented and separate by the above corridor by Tuckwell Road itself
and the existing dwelling and managed garden opposite.

24. Mr AB also noted that once the lots within the subdivision were developed the
construction traffic referred to earlier will no longer exist.

25. Mr AB advised that the proposed “1.8m high colorbond fence” was a
recommendation from the bushfire report that was submitted when the application was
first lodged, in response to the site being mapped as bushfire prone land. A further
bushfire report has since been prepared and endorsed by the NSW Rural Fire Service.
This later report does not require a “1.8m high colorbond fence” as discussed above.

26. Mr G-- from XXXXXXXXXXX raised concern with the fact that a colorbond
fence could still be built. Mr Annis-Brown offered to accept a condition of consent
precluding the use of colorbond fencing when the lots are developed, should the
application be approved.

27. Mr Hawkins explained that should the application be approved, the restriction and
positive covenant proposed to be created on the title of proposed lot 205 relating to the
ongoing maintenance of the vegetation within the restricted development area, would
bind all owners of the site, both present and in the future. In this respect, until such
time as this lot was sold, the developer would be responsible for the ongoing
maintenance of the vegetation. The restriction and positive covenant would favour
Council, who would therefore be responsible for ensuring the owner of the lot complies
with their requirements under the same. It was also noted that there is an existing
vegetation management plan and bat management plan that applies to the site, which
the developer is bound by via an existing restriction and positive covenant on title that
were created as part of the preceding Court approved subdivision.

28. Ms F-- also of XXXXXXXXXXX raised concern with the fact that the trees that
were retained within lots as part of the preceding Court approval are systematically
being removed as dwellings are constructed.

29. Mr H-- suggested that the subject site should be acquired by Council as a public
reserve, instead of being retained in private ownership. He indicated that the ongoing
management and maintenance could be carried out by a local volunteer group. Concern
was also raised with the lack of public reserve in the immediate locality in general.

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30. CONCILIATION
Mr Hawkins responded CONFERENCE
by advising that Council would needNOTES
to source additional funds
to purchase the land. It was also explained that the preceding Court approval sought to
consolidate Council’s existing land holdings in the area, being a small parcel of land
south of the subject site and severed by Cumberland Avenue, with a portion of the
subject site so as to create a rectangular shaped area of public open space on the
southern side of Cumberland Avenue at the intersection of Cumberland Avenue/
Lockhart Avenue that would adequately provide for the needs to local residents. This
process requires the reclassification and rezoning of land, which is expected to occur
concurrently with the exhibition of draft uncertified 2010 Local Environmental Plan, a
fact reflected by the proposed RE1 zoning shown on the maps currently available.

31. Mr P-- of XXXXXXXXXXX suggested that the applicant was waging a “war of
attrition” by first setting aside the subject site as part of the preceding Court approval
for retention and now proposing to further subdivide it to retain a smaller area. He
suggested that in a few years the retained vegetation will degrade to the point where a
further application could be lodged to subdivide it again.

32. Mr H-- again spoke about connectivity between the subject site and the Castle Hill
Creek biodiversity corridor located on the opposite side of Tuckwell Road, and how
proposed lot 206 severed this connection.

33. Mr AB responded by advising that the area proposed to be retained was based
on an assessment of the quality of the vegetation present, with the best quality located
in the north-eastern corner of the site, coinciding with the restricted development area
proposed within lot 205. He also disputed the argument concerning connectivity
between the subject site and the Castle Hill Creek biodiversity corridor.

34. The zoning history of the site was also queried. Mr Hawkins indicated that it was his
understanding that the site was rezoned at the same time as the surrounding area; it
was just not developed at the same time.

35. Following the meeting, further investigation into the sites zoning history revealed the
above to be correct. The wider area bound by Showground Road, Gilbert Road, Tuckwell
Road and Castle Street was rezoned in 1971, with a minimum allotment size of 10,000
square foot applying at the time.

At this stage the Chair summarised the issues raised:

- Traffic, both during the construction of the dwellings within the subdivision and once
the area is fully developed.

- The arguments for and against the through connection of Ashmead Avenue to St Marks
Avenue/ Cumberland Avenue.

- The ecological impacts of the proposed and the various legislation that applies, such as
the Environmental Planning and Assessment Act, the Threatened Species Conservation
Act, particularly with respect to the Species Impact Statement and the bio-banking
legislation and the Environmental Protection Biodiversity Conservation Act.

- The mechanism to ensure the ongoing management of the retained vegetation.

- The acquisition of the land by Council as a public reserve.

- The availability of public open space in the locality in general.

- Boundary fencing finishes.

- The zoning history of the site.

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The Chair explained CONCILIATION
the process from here.CONFERENCE
Following the meetingNOTES
Council staff will finalise
their assessment of the application, and a report will be prepared for consideration by Council’s
Development Assessment Unit. The Development Assessment Unit business paper will be
distributed to all Councillors. Residents are able to make representations to Councillors to
request that the matter be determined at a full Council meeting. For this to occur, three
Councillors would have to agree to have the matter referred. Should approval be
recommended, the application would need to then be referred to the NSW Department of
Environment, Climate Change and Water for concurrence due to the flora and fauna impacts of
the proposal as explained earlier.

Notes from the Conciliation Conference will be prepared by Mr Hawkins, a copy of which will be
distributed to everyone who had made a submission, including those in attendance at the
meeting. Additionally, objectors will be advised when the matter is scheduled for consideration
by Council’s Development Assessment Unit and of the outcome of the Development
Assessment Unit meeting.

The Chair then proceeded to thank those in attendance for the spirit in which the meeting was
conducted. The meeting was closed at 8:15pm.

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