Cumberland Local Planning Panel Meeting

 14 August 2019

A meeting of the Cumberland Local Planning Panel will be held at 11:30am at the Merrylands Administration Building, 16 Memorial Avenue, Merrylands on Wednesday, 14 August 2019.

Business as below:

Yours faithfully

Hamish McNulty

General Manager

ORDER OF BUSINESS

1.      Receipt of Apologies

2.      Confirmation of Minutes

3.      Declarations of Interest

4.      Address by invited speakers

5.      Reports:

          -        Development Applications

          -        Planning Proposals

6.      Closed Session Reports

 


Cumberland Local Planning Panel Meeting

 14 August 2019

CONTENTS

Report No.  Name of Report                                                                                         Page No.

Development Applications

LPP053/19... Development Application - 58-60 Berwick Street, Guildford......................... 5

LPP054/19... Section 4.56 Modification Application - 331 Blaxcell Street, South Granville    185

LPP055/19... Development Application - 40 - 42A Park Road, Auburn......................... 317

LPP056/19... Development Application - 96 Chiswick Road, Auburn........................... 499

LPP057/19... Section 4.56 Modification Application - 1/181 McCredie Road, Guildford West 549

 

 


Cumberland Local Planning Panel Meeting

14 August 2019

 

Item No: LPP053/19

Development Application - 58-60 Berwick Street, Guildford

Responsible Division:                    Environment & Planning

Officer:                                              Executive Manager Development and Building

File Number:                                    DA 2019/11/1  

 

 

Application lodged

16 January 2019

Applicant

Baini Design

Owner

Anrite Holdings Pty Ltd, Chrisyl Holdings Pty Ltd & Manmark Holdings Pty Ltd

Application No.

2019/11/1

Description of Land

58-60 Berwick Street, Guildford

Proposed Development as amended

Demolition of existing structures and construction of a 4 storey building comprising of a 76 place child care centre on the ground floor with 18 residential units above with two basement car parking levels for 36 vehicles; pursuant to Affordable Rental Housing SEPP 2009

Site Area

1,349.08m² (1,236.18m² post road widening dedication)

Zoning

R4 High Density Residential

Principal Development Standards

Floor Space Ratio:

Max. 1.2:1 permitted (HLEP) + ARH % Bonus

·   Proposed FSR = 1.53:1 (27.5% variation to FSR standard)

·   Affordable units not identified to determine ARH % Bonus

·   No Clause 4.6 Written Variation Request submitted for the departure sought to FSR

 

Height of Buildings:

Max. 15m permitted

·   Proposed Max. 16.5m (10% variation sought)

·   Clause 4.6 Written Variation Request submitted for the departure sought to building height

Disclosure of political donations and gifts

Nil disclosure

Heritage

The subject site is located within the vicinity of a heritage item of local significance being “Kelvin”, Federation/Queen Anne bungalow at No. 67 Berwick Street, Guildford (I33)

Issues

·     Floor Space Ratio (SEPP ARH 2009 & HLEP 2013)

·     Landscaped Area (SEPP ARH 2009)

·     Deep Soil Zone (SEPP ARH 2009)

·     Solar Access (SEPP ARH 2009 & HDCP 2013)

·     Variation to maximum 15m building height (HLEP 2013)

·     Visual Privacy / Building Separation (ADG & HDCP 2013)

·     Outdoor play space (SEPP Education & Child Care) 2017

·     Site Coverage (HDCP 2013)

·     Setbacks (HDCP 2013)

·     Character

·     Flooding

·     Acoustic Privacy

·     Traffic and Parking

Summary:

On 16 January 2019, development application (DA2019/11) for demolition of existing structures, and construction of a 4 storey building comprising of a 76 place child care centre on the ground floor with 18 residential units above with two basement car parking levels for 36 vehicles made pursuant to Affordable Rental Housing SEPP 2009; was lodged with Council.

The application was publicly notified to adjoining and opposite owners, a notice was placed in the local press and a notice placed on the site for 21 days from 20 February 2019 to 13 March 2019. In response, three submissions were received.

Correspondence was sent to the applicant on 31 May 2019 advising that the application could not be supported, and inviting its withdrawal. That correspondence also set out Council’s concerns with the application in detail. The issues included inadequate information relating to accuracy of levels within the submitted survey plan, flood levels, identification of “site area”, deficient landscaped area and deep soil area, solar access, unacceptable streetscape presentation and compatibility with the character of the local area, compliance with child care centre provisions, and traffic matters. The applicant elected not to withdraw the application.

The subject application has been assessed against the relevant provisions of the Environmental Planning and Assessment Act 1979, State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH),  State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65), State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017, Child Care Planning Guideline (the Guideline) 2017, Holroyd Local Environmental Plan 2013 (HLEP), Apartment Design Guide and Holroyd Development Control Plan 2013 (HDCP).

The proposal seeks the following numerical non-compliances which are not considered supportable as discussed in detail elsewhere in the report:

Control

Required

Proposed

% Variation

Floor Space Ratio (SEPP ARH & HLEP 2013)

Max. permitted = 1.2:1 (HLEP) + ARH % Bonus

 

Note: Affordable units have not been nominated to determine ARH% Bonus

FSR = 1.53:1 (1,895.5m²)

27.78%

Landscaped Area

(SEPP ARH)

Min. 30% = 370.85m²

337.3m² (27.28%)

9%

Deep Soil Zone

(SEPP ARH)

Min. 15% = 185.43m²

27.2m² (2.22%)

85.33%

Solar Access

(SEPP ARH)

Min. 70% of units receive 3 hours direct sunlight

12 out of 18 units (66.7%)

7.69%

Building Separation

(ADG)

Min. 6m up to 4 storeys

 

 

 

 

 

Min. 9m for 5-8 storeys

Levels 1-3:

Eastern Boundary

Balconies = 5.5m

 

Southern Boundary

Habitable rooms = 5.5m

Balconies = 4.8m

 

Eastern Boundary

COS = 6m

8.33%

 

 

 

8.33%

20%

 

 

33.33%

Unencumbered outdoor space

SEPP Education & Child Care 2017

 

76 children x 7m²

= 532m²

 

510m²

 

4.13%

Building Height

(HLEP 2013)

Max. 15m

Max. 16.5m (RL 38.395) to the roof of lift core and stairwell

10%

Driveway Setback (HDCP 2013)

Min. 1.5m

1.225m

18.33%

Bicycle Parking Spaces

(HDCP 2013)

11 spaces

7 spaces

36.36%

Site Coverage

(HDCP 2013)

Max. 30% (370.85m²)

472.4m² (38%)

27.38%

Front Setbacks

(HDCP 2013)

6m to Berwick Street

 

4m to Beaufort Street

Balconies = 5.5m

 

Balconies = 3.5m

8.33%

 

12.5%

Internal building depth

(HDCP 2013)

Max. 18m

Max. 19.4m

7.78%

The application is being reported to the Cumberland Local Planning Panel (CLPP) for determination as it is a development with more than 4 storeys to which the State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development applies.

The application is recommended for refusal for the reasons provided in the draft Notice of Determination at Attachment 8.

Report:

History

On 28 February 2018, DA2017/81 granted development consent for the construction of a 4 storey residential flat building comprising 21 units above basement parking accommodating 26 car parking spaces at 58-60 Berwick Street, Guildford.

This is an active consent which applies to the land. The date of expiry of DA2017/81 is 28 February 2023.

Introduction

The subject site is known as 58-60 Berwick Street, Guildford; and is legally described as Lots 29-34, Sec 9 in DP734. The site has an area of 1,349.08m² and frontage of 40.235m and 33.53m to Berwick Street and Beaufort Street respectively. The site is regular in shape and has a depth of 40.235m to the eastern boundary and depth of 33.53m to the southern boundary.

The property is subject to 1.5m road widening to both Beaufort Street and Berwick Street, with 3m x 3m splay at the corner of both streets; as identified within Map 1 – Appendix K – Locations Subject to Road Widenings and Splay Corners in Part A of HDCP 2013. The site area will be reduced to 1,236.18m² post dedication of land along Beaufort Street and Berwick Street for road widening.

The property is occupied by two dwelling houses, ancillary structures, outbuildings and mature trees.

The site is located approximately 800m from Guildford Railway Station.

The subject site and neighbouring allotments directly to the east and south are zoned R4 – High Density Residential. Properties located on the northern side of Beaufort Street and western side of Berwick Street are zoned R3 – Medium Density Residential. Opposite the subject site at the corner of Beaufort Street and Berwick Street are Beaufort Street Park and Berwick Street Reserve.

The existing developments surrounding the subject site are residential flat building directly to the south and south-east, and primarily dwelling houses and low to medium density housing. However, the locality is transitioning to medium to higher density development consistent with the planning controls that currently apply, and evident with the recently constructed development in the area.

Figure 1 - Aerial view of the locality with subject site shown highlighted in red. Source: NearMap 7 April 2019

Figure 2 – Zoning map with subject site shown hatched. Source: Cumberland Council 2018

IMG_0031

Figure 3 – No. 60 Berwick Street (subject site) and adjoining residential flat building south of the site at No. 62-66 Berwick Street. Source: Cumberland Council 2019

IMG_0029

Figure 4 – No. 58 Berwick Street (subject site). Source: Cumberland Council 2019

IMG_0028

Figure 5 – View of No. 58 Berwick Street (subject site) from Berwick Street. Source: Cumberland Council 2019

IMG_0042

Figure 6 – View of No. 58 Berwick Street (subject site) from Beaufort Street and adjoining property No. 63A Bangor Street. Source: Cumberland Council 2019

 

Description of The Proposed Development

DA 2019/11/1 seeks consent for demolition of existing structures, and construction of a 4 storey building comprising of a 76 place child care centre on the ground floor with 18 residential units above with two basement car parking levels for 36 vehicles made pursuant to Affordable Rental Housing SEPP 2009.

Key features of the development proposal are as follows:-

Level

Details

Basement 2

17 residential car spaces (including 1 accessible parking spaces)

3 motorbike spaces

7 bicycle spaces

Lift and fire stairs

Basement 1

19 car spaces for child care centre (including 1 accessible parking space)

Bin room, lift and fire stairs

Ground level

 

Child care centre comprising 3 indoor play areas with outdoor play areas proposed within the front setback area and along the eastern and southern boundaries.

Pedestrian access to child care centre from Beaufort Street

Pedestrian access to residential units from Berwick Street

Lift, fire stairs and landscaping

Level 1

6 residential units

Level 2

6 residential units

Level 3

6 residential units

Level 4

Rooftop terrace / communal open space

The dwelling mix of the proposal is as follows:

·        6 x 1-bedroom/studio units (33%)

·        9 x 2-bedroom units (50%)

·        3 x 3-bedroom units (17%)

The child care centre will accommodate a maximum capacity of 76 children placement as follows:

·        16 children – 0-2 yrs

·        30 children – 2-3 yrs

·        30 children – 3-5 yrs

The proposed centre will operate from 7.00am to 6.00pm Monday to Friday, and will employ 12 staff.

There is no signage proposed as part of the application.

Figure 7 – Perspectives of proposed development – Beaufort St & Berwick St frontage

Application History

Date

Action

16 January 2019

The subject development application was lodged with Council.

12 February 2019

The application was referred to the following internal and external sections:

·    Development Engineering

·    Traffic Engineering

·    Children’s Services

·    Environmental Health

·    Landscaping/Tree Management

·    Waste Management

·    Endeavour Energy

20 February 2019 to 13 March 2019

Application placed on public notification. In response, 3 submissions were received.

31 May 2019

Correspondence was sent to the Applicant advising that the application could not be supported, and inviting its withdrawal. That correspondence also set out Council’s concerns with the application in detail. The issues included inadequate information relating to accuracy of levels within the submitted survey plan, flood levels, identification of “site area”, deficient landscaped area and deep soil area, solar access, unacceptable streetscape presentation and compatibility with the character of the local area, compliance with child care centre provisions, and traffic matters.

5 June 2019

Meeting held with Applicant to discuss matters raised in Council’s letter dated 31 May 2019. The Applicant advised at the meeting that the DA will not be withdrawn.

14 August 2019

Application referred to CLPP for determination.

Applicant’s Supporting Statement

A Statement of Environmental Effects prepared by Think Planners dated 20 December 2018 was submitted with the application.

A written request to vary the building height standard, prepared in accordance with Clause 4.6 of HLEP 2013 by Think Planners, dated 20 December 2018, in support of the application.

Contact With Relevant Parties

The assessing officer has undertaken an inspection of the subject site and has been in contact with the applicant throughout the assessment process.

Internal Referrals

Development Engineer

The subject site is identified as a flood control lot. The proposal was referred to Council’s Development Engineer for comment who has outlined that the submitted survey plan does not correspond with levels as identified in Council’s mapping system – The variation of levels being in the extent of approximately 6.0m. In addition, the proposal comprises of a child care centre which is identified within the sensitive land use category in Table 7 – Land Use Categories for Development upon Flood Prone Land – Section 8 – Flood Prone Land in Part A of HDCP 2013. In this regard, the finished floor level (FFLs) shall be equal to or greater than the PMF level in accordance with the Flood Risk Precincts (FRPS) in Part A of HDCP 2013. Given the submitted survey plan is incorrect, the proposal fails to provide the required levels for the proposal and there is inadequate information to support the development. In this regard, the proposal is not supported and engineering matters raised form part of the reasons for refusal contained within the draft notice of determination.

Traffic Engineer

The development application was referred to Council’s Traffic Engineer for comment who raised issues relating to functionality and non-compliance of the basement car parking with respect to the internal layout, manoeuvring, driveways and traffic measures required. In this regard, the proposal is not supported and parking and traffic matters raised form part of the reasons for refusal contained within the draft notice of determination.

Children’s Services

The development application was referred to Council’s Children’s Services section for comment who has advised that the development is not supportable in regards to compliance with the provisions of Education and Care Services National Regulations and Law, specifically with regard to the location and provision of outdoor space, amenity of indoor space, landscape buffer, storage and laundry facilities. Matters raised relating to the child care centre form part of the reasons for refusal contained within the draft notice of determination.

Environmental Health Officer

The development application was referred to Council’s Environmental Health Officer for comment with respect to contamination and acoustic matters. Council’s Environmental Health Officer has advised that following review of the submitted Preliminary Site Investigation, the site is considered suitable for the proposed child care and residential development, subject to the imposition of conditions should consent be granted.

With respect to acoustic impacts, the submitted acoustic report provides no consideration for the use/impacts of noise from the child care facility. The report also did not have consideration of the use/impacts from the proposed 76 place child care centre on the tenants on the site as well as adjoining neighbours, car park noise, noise from mechanical plant, noise impacts from the demolition/construction activities (including noise and vibration intrusion) and the overall cumulative acoustic impacts of the proposed use.

The proposal is not supportable with regards to acoustic impacts and this forms part of the reasons for refusal contained within the draft notice of determination.

Landscaping/Tree Management

The development application was referred to Council’s Tree Management Officer for comment who has advised that the development is supportable in regards to the removal of the street tree and property trees, protection of existing trees on the adjoining properties, and replacement tree planting subject to conditions.

Waste Management Officer

The development application was referred to Council’s Waste Management Officer for comment who has advised that the development is unsatisfactory with regard to the ongoing management of waste. No bin storage rooms have been provided for the child care centre or for residential apartments. The proposal is not supportable with regards to waste management and this forms part of the reasons for refusal contained within the draft notice of determination.

External Referrals

Transgrid

The development application was referred to Transgrid for comment pursuant to Clause 45 of State Environmental Planning Policy (Infrastructure) 2007 for comment, who advised that the development is supportable, and no conditions are recommended to be imposed.


 

Endeavour Energy

The development application was referred to Endeavour Energy for comment pursuant to Clause 45 of State Environmental Planning Policy (Infrastructure) 2007 for comment, who raised issues relating to adequate safety clearances to existing electricity lines, which have included as part of the reasons for refusal contained within the draft notice of determination.

Planning Assessment

Section 4.15 of the Environmental Planning and Assessment Act 1979

State Environmental Planning Policies

The following Environmental Planning Instruments are relevant to the assessment of the subject application:

(a)     State Environmental Planning Policy (Affordable Rental Housing) 2009 (ARH SEPP)

The proposal falls under Part 2 New affordable rental housing – Division 1 In-fill affordable housing.

The following table sets out the SEPP ARH non-compliances:

Standard

Required / Permitted

Provided

Compliance

Clause 13

 

Floor space ratios

At least 20% of GFA must be for affordable housing.

 

Where existing max FSR is 2.5:1 or less, & percentage of GFA used for affordable is less than 50%, the max permitted FSR is existing plus bonus based upon % proposed.

 

Note: Calculations are based on the post-dedication site area

 

Site Area = 1,236.18m² (post-dedication)

 

 

 

Max. FSR permitted = 1.2:1 (HLEP 2013)

 

Max. GFA permitted

= 1.2 x 1,236.18m²

= 1,483.41m²

 

Provided FSR = 1.53:1

 

Provided GFA = 1,895.5m²

Ground Floor = 433.4m²

Level 1 = 483.6m²

Level 2 = 483.6m²

Level 3 = 483.6m²

Rooftop terrace = 11.3m²

No – Affordable units have not been identified to confirm the percentage of affordable housing provided, and to determine overall FSR compliance inclusive of any FSR bonus applicable.

Clause 14

Standards that cannot be used to refuse consent

c) Landscaped Area

 

At least 30% of the site area to be landscaped

Required = Min. 370.85m²

 

Provided = 337.3m² (27.28%)

Ground Floor = 148.7m²

Planter boxes on Levels 1-3 = 134.7m²

Rooftop planters = 53.9m²

 

No – Deficient by 33.55m²

 

d) Deep Soil zone

 

At least 15% of site area is deep soil, with 3m dimensions

Required = Min. 185.43m²

 

If practical, at least 2/3 of the area should be to the rear of the development.

 

Provided = 27.2m² (2.22%)

 

The deep soil area provided is within the front setback area along Beaufort St, adjacent to the child care centre entry.

 

 

No – Deficient by 158.23m²

 

e) Solar Access

 

If living rooms & private open spaces for at least 70% of units (13 units) receive a minimum of 3 hours direct sunlight between 9am & 3pm in mid-winter

 

 

12 out of 18 units (66.7%) receive the minimum 3 hours solar access

 

 

 

No – deficient by 1 unit

A comprehensive assessment against ARH SEPP is attached to this report – Attachment 1.

16A Character of Local Area

A consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area. The SEPP (ARH) does not contain any guidance for assessing whether a proposal is compatible with the character of the local area. However, a planning principle for assessing compatibility in the urban environment was established by Senior Commissioner Roseth of the Land and Environment Court in the judgement for Project Venture Developments Pty Ltd v Pittwater Council [2005] NSWLEC 191. This involves asking the following two questions:

·        Are the proposal’s physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites.

·        Is the proposal’s appearance in harmony with the buildings around it and the character of the street?

·        A merit assessment of the character of the local area should consider the following 3 steps:

·        Step 1 – Identify the ‘local area’.

·        Step 2 – Determine the character of the ‘local area’.

·        Step 3 – Determine whether the design of the proposed development is compatible with the character of the ‘local area’.

An assessment against each step is provided below:

Step 1 – Identify the local area

This assessment identifies the local area as primarily the visual catchment of the site (hatched in red) as viewed from within the site and directly adjacent to the site on the street which is defined by the yellow line in Figure 8, and white line in Figure 9 below:

Figure 8 – Local Area catchment as identified on Aerial Map

Figure 9 – Local Area catchment as identified on Zoning Map

Step 2 – Determine the character (present and future) of the local area.

The zoning of the broader locality and immediate area comprises R4 High Density Residential adjoining the site directly to the south and east, and R3 Medium Density Residential for properties located on the western side of Berwick Street and northern side of Beaufort Street; under the Holroyd Local Environmental Plan (HLEP) 2013.

Present character of the area

The character of the local area comprises the visual catchment of allotments viewed from and surrounding the subject site, which includes:-

Berwick Street

1.      Three (3) storey residential flat building (62-66 Berwick Street).

2.      Detached dwelling houses and attached dual occupancies located on the western side of Berwick Street.

3.      Opposite the subject site at the corner of Beaufort Street and Berwick Street are Beaufort Street Park and Berwick Street Reserve.

Bangor Street

4.      Detached dwellings houses and attached dual occupancies located on both sides of Bangor Street; and both sides of Berwick Street north of the site.

5.      Three (3) storey residential flat buildings at the corner of Berwick Street and Bangor Street with Stimson Street – 72-74 Berwick Street & 77-79 Bangor Street respectively.

6.      Three (3) storey walk up residential flat building at the corner of Bangor Street and Beaufort Street (54-56 Bangor Street).

7.      Three (3) storey residential flat building (67-71 Bangor Street).

Cardigan Street

8.      Two (2) storey walk up residential flat building at the corner of Beaufort Street and Cardigan Street (67 Cardigan Street).

9.      Part 2 and part 3 storey residential flat building at the corner of Beaufort Street and Cardigan Street (64-68 Cardigan Street).

10.    Three (3) storey residential flat buildings at the corner of Cardigan Street and Stimson Street (72-78 Cardigan Street).

11.    A part 2 and part 3 storey residential flat building has been approved at 69-77 Cardigan Street (DA2006/226). The DA is operative but construction has not yet commenced.

12.    The remaining sites on Cardigan Street comprise of detached dwellings and dual occupancies.

Future character of the area

Whilst there are a number of one and two storey dwellings within the locality, the area is transitioning to higher density developments in accordance with the planning controls that currently apply. The area zoned R4 High Density Residential is subject to a maximum height limit of 15m and maximum floor space ratio (FSR) of 1.2:1. The emerging character of the area is generally that of small, 3 to 4 storey residential flat buildings. The locality is in transition particularly to support the increasing demand of affordable housing within the close proximity of a public transport hub and major commercial centre. The transition issue is clear with regard to FSR and height limits applicable to sites within the local area.

Step 3 - Determine if the development is compatible with the character of the local area.

In accordance with the Land and Environment Court’s ‘Planning Principle’ and case law compatibility is best defined as ‘capable of existing together in harmony’. In order to test compatibility two questions are to be considered. These questions, as well as a response to each, are provided below:

·        Are the proposal’s physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites.

In terms of the physical impacts of the development:

o The proposal has a site coverage of 38% of the site area. HDCP 2013 provides for maximum site coverage of 30% of total site area for residential flat buildings. The excessive site coverage is associated with limited side setbacks and inadequate landscaping to the side boundaries. Together, these non-compliances result in unacceptable visual and acoustic privacy outcomes for occupants of the existing adjoining dwellings, as well as future residents of the development.

o Shadows from the proposed development fall on the property to the south (62-66 Berwick Street) and indicate that north facing living rooms and balconies of units within the neighbouring property will not receive adequate solar access at mid-winter.

·        Is the proposal’s appearance in harmony with the buildings around it and the character of the street?

The subject site and surrounding properties are subject to a 4 storey control under HDCP 2013. The surrounding flat buildings sit well below the 15m height limit, and the majority (including all the buildings within the visual catchment of the subject site) have a maximum of 3 storeys. The proposal is 4 storey in height with roof top communal open space (COS), and exceeds the maximum 15m height limit. The COS provided on the rooftop is not representative of development within the area (existing and future built form).

With respect to streetscape presentation, the proposal provides inadequate setbacks to both Beaufort Street and Berwick Street, and both street setback areas comprise of the outdoor play space for the child care centre and front fencing to a height of 2m with shrubs in front, which is uncharacteristic with landscaping treatment of properties within the visual catchment of the site. The lack of landscaping within the front setback area of both streets is inconsistent with the prevailing landscape character of the area, and does not serve to soften the visual impact of the development either from the street, or from adjacent properties, or promote an active street edge.

To be compatible, a development should contain, or at least respond to, the key aesthetic elements that make up the character of the surrounding area. The size of the basement and location of the outdoor space of the child care centre does not maximise landscaping and deep soil zones on site. Generous setbacks to the street and neighbouring sites have not been provided to be consistent with the existing streetscape.

In summary, the design and presentation of the proposed development, as well as its relationship to the site and the surrounding developments is not considered to be in harmony with the character of the local area. This is included as a reason for refusal in the draft determination.

(b)     State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65)

The proposal is classified as a residential apartment development and SEPP 65 applies. A design verification statement signed by registered architect Ben Vitale was submitted with the application. A comprehensive assessment against the Apartment Design Guide (ADG) controls is provided at Attachment 2.

The following table sets out the ADG non-compliances.

3B

Orientation

3B-1

Building types and layouts respond to the streetscape and site while optimising solar access within the development.

The proposed building presentation to the street is not considered satisfactory. The massing of the building and additional height sought results in an unacceptable built form having regard to streetscape impacts as the reduced setbacks provide for a bulk and scale greater than that desired for the immediate area.

3B-2

Overshadowing of neighbouring properties is minimised during mid-winter.

 

 

 

It has not been demonstrated that the adjoining property to the south will retain adequate solar access having regard to the inadequate side setback and building separation provided. A minimum of 50% of the private open space areas of adjacent dwellings to have access to 3 hours of direct sunlight between 9.00am and 4.00pm at the winter solstice (22 June) (which is the requirement for residential flat buildings in control C8 of Part B clause 1.8 ‘Sunlight Access’ of HDCP 2013).

 

The proposed building will stand an additional storey higher than the neighbouring residential flat building (RFB) at 62-66 Berwick St, and also proposes a roof top terrace; which will adversely impact solar access to north facing private open space and living areas of 6 out of 17 units, and portions of the ground floor communal open space of the adjoining RFB.

 

The proposal has not provided a detailed assessment for overshadowing impact. No elevational shadow diagrams have been submitted to demonstrate that the proposed building will not adversely overshadow the adjoining 3 storey residential flat building to the south at 62-66 Berwick St between 9am-3pm.

 

Where a proposal significantly reduces the solar access of neighbours, building separation should be increased beyond minimums contained in Section 3F Visual Privacy. The proposal provides an inadequate building separation of 5.4m to the southern boundary and results in adverse overshadowing of the neighbouring property.

 

In this regard, it is considered that the amenity of north-facing units at 62-66 Berwick St will be compromised, which is considered unacceptable. The above non-compliance is included as a reason for refusal in the draft of determination.

3C

Public Domain Interface

3C-1

Transition between private and public domain is achieved without compromising safety and security.

Transition between the public and private domain is considered not satisfactory. The public domain along both street frontages comprise of groundcover and shrub planting forward of the outdoor play spaces of the childcare centre, enclosed by high acoustic fencing. The landscape treatment proposed to both street frontages does not promote an active street edge and conceal direct view of the building entrances.

3C-2

Amenity of the public domain is retained and enhanced.

The outdoor play space of the child care centre is proposed within the front setback area of both street frontages. Planting or other design measures are not in place to soften the visual impact of the acoustic fencing bounding the child care centre outdoor play spaces when viewed from the street.

3E

Deep Soil Zones

 

Deep soil zones are to meet the following minimum requirements:

 

Required: Min. 86.53m² (7%)

Provided: 27.2m² (2.22%)

 

The proposal is made pursuant to SEPP ARH and requires min. 15% of deep soil area to be provided.

3F

Visual Privacy

3F-1

Separation between windows and balconies is provided to ensure visual privacy is achieved. Minimum required separation distances from buildings to the side and rear boundaries are as follows:

 

 

Note:

Separation distances between buildings on the same site should combine required building separations depending on the type of room.

Gallery access circulation should be treated as habitable space when measuring privacy separation distances between neighbouring properties.

Building is 4 storey in height, with roof top terrace.

 

West: Berwick Street

 

North: Beaufort Street

 

East / Rear:

Ground Floor – Child care centre

Levels 1-3:

Requires a min. 6m setback to boundary.

Bedrooms and bathrooms setback 6m to boundary.

Balconies setback 5.5m to boundary (measured from outer face of balcony).

5th storey

Requires a min. 9m setback to boundary.

COS setback 6m to boundary (measured from outer face of planter boxes)

 

South:

Ground Floor – Child care centre

Levels 1-3:

Requires 6m setback.

Bedrooms and bathrooms setback 5.4m to boundary.

Balconies setback 4.8m to boundary (measured from outer face of balcony).

5th storey

Requires a min. 9m setback to boundary.

COS setback 9.2m to boundary (measured from outer face of planter boxes)

 

Inadequate building separation is provided between habitable rooms and balconies of the subject proposal and adjoining RFB at 62-66 Berwick St.

 

3G

Pedestrian Access and Entries

3G-1

Building entries and pedestrian access connects to and addresses the public domain.

The building entry to apartments from Berwick St is not clearly defined or easily identifiable. The residential pedestrian access is narrow and hidden between two outdoor play spaces of the child care centre and as such can be easily mistaken as the entry for the child care centre.

3G-2

Access, entries and pathways are accessible and easy to identify.

4D

Apartment Size and Layout

4D-1

The layout of rooms within an apartment is functional, well organised and provides a high standard of amenity.

 

The central single facing east apartment (“Unit 01.06”) is replicated on Levels 1-3 inclusive and proposes a snorkel bedroom (being the master bedroom). The snorkel bedroom is positioned in between the southern wall (2m depth) of the second bedroom and balcony of the adjoining apartment, and as such receives poor sunlight and ventilation.

4J

Noise and Pollution

4J-

In noisy or hostile environments the impacts of external noise and pollution are minimised through the careful sitting and layout of buildings.

 

The noise impacts from the proposed 76 place child care centre located on the ground floor has not been considered within the design and siting of apartments. The submitted acoustic report provides no consideration for the use/impacts of noise from the child care facility.

4M

Façades

4M-1

Building facades provide visual interest along the street while respecting the character of the local area.

The building’s presentation along both street frontages, at the street level is not considered acceptable as it comprises of the outdoor play spaces of the child care centre and does not address or is consistent with the existing streetscape and changing character of the local area. The building entries are also not clearly defined.

4M-2

Building functions are expressed by the façade.

4O

Landscape Design

40-2

Landscape design contributes to the streetscape and amenity.

 

Landscape design proposed at the ground level is minimal and limited to a width of 1m and 2m along Beaufort St and Berwick St respectively, forward of the child care centre’s outdoor play space. In addition, the proposed landscape treatment of the front setback area has not been distributed within the front setback to provide adequate visual softening of the building.

4W

Waste Management

4W-1

Waste storage facilities are designed to minimise impacts on the streetscape, building entry and amenity of residents.

Separate bin rooms have not been provided for the child care or residential apartments.

(c)     State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017

The relevant provisions of the SEPP have been considered in the assessment of the Application.

It is noted that State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 commenced on 1 September 2017. The SEPP applies to any proposals for new schools or child care centres or proposed alterations and additions to existing centres. The relevant provisions of the SEPP have been considered in the assessment of the Application.

A comprehensive assessment and compliance table is attached to this report in Appendix A, which indicates that there are non-compliances with the SEPP 2017 with regard to number of children proposed and outdoor unencumbered space as under:

Control

Required

Provided

Number of children and outdoor unencumbered space (regulation 108 SEPP 2017 and part 4.9 the Guideline)

7m² x 76 = 532m²

The application indicates that an unencumbered area of 564m² is provided. However, this has not taken consideration of OSD pits, retaining walls and dense planting.

 

The assessment officer’s calculation of the unencumbered outdoor space equates to 510m². This will accommodate only 72 children.

(d)     State Environmental Planning Policy (Infrastructure) 2007

Clause 45 – Development likely to affect an electricity transmission or distribution network

The development application was referred to Endeavour Energy for comment, who raised concerns relating to adequate safety clearances to existing electricity power lines, which have included as part of the reasons for refusal contained within the draft notice of determination.

(e)     State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55)

The requirement at Clause 7 of SEPP No. 55 for Council to be satisfied that the site is suitable or can be made suitable to accommodate the proposed development has been considered in the following table:

Matters for consideration

Yes

No

N/A

Does the application involve re-development of the site or a change of land use?

Is the development going to be used for a sensitive land use (e.g.: residential, educational, recreational, childcare or hospital)?

Does information available to you indicate that an activity listed below has ever been approved, or occurred at the site?  

 

acid/alkali plant and formulation, agricultural/horticultural activities, airports, asbestos production and disposal, chemicals manufacture and formulation, defence works, drum re-conditioning works, dry cleaning establishments, electrical manufacturing (transformers), electroplating and heat treatment premises, engine works, explosive industry, gas works, iron and steel works, landfill sites,  metal treatment, mining and extractive industries, oil production and storage, paint formulation and manufacture, pesticide manufacture and formulation, power stations, railway yards, scrap yards, service stations, sheep and cattle dips, smelting and refining, tanning and associated trades, waste storage and treatment, wood preservation.

Is the site listed on Council's Contaminated Land Database?  

Is the site subject to EPA clean-up order or other EPA restrictions?  

Has the site been the subject of known pollution incidents or illegal dumping?

Does the site adjoin any contaminated land/previously contaminated land?  

Has the appropriate level of investigation been carried out in respect of contamination matters for Council to be satisfied that the site is suitable to accommodate the proposed development or can be made suitable to accommodate the proposed development?

Details of contamination investigations carried out at the site:  

The site is not identified in Council’s records as being contaminated. Council’s Environmental Health Officer has advised that following review of the submitted Preliminary Site Investigation, the site is considered suitable for the proposed childcare and residential development, subject to the imposition of conditions should consent be granted.

(f)      State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

BASIX certificate 987245M dated 21 December 2018 was submitted with the application. The certificate achieves target scores and is consistent with the architectural plans.

Regional Environmental Plans (Deemed State Environmental Planning Policies)

(g)     Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005

The subject site is identified as being located within the area affected by the Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005. The proposed development raises no issues as no impact on the catchment is envisaged.

Note: The subject site is not identified in the relevant map as land within the ‘Foreshores and Waterways Area’ or ‘Wetland Protection Zone’, is not a ‘Strategic Foreshore Site’ and does not contain any heritage items. Hence the majority of the SREP is not directly relevant to the proposed development.

Local Environmental Plans

(h)     Holroyd Local Environmental Plan 2013 (HLEP 2013)

The proposal comprises of a child care centre located on the ground floor with residential apartments above. The proposal is considered to be a ‘centre based child care facility’ and ‘residential flat building’ under the provisions of HLEP 2013; both of which are permitted consent in the R4 – High Density Residential zone which applies to the land.

The proposal seeks the following variations to HLEP 2013:

Height of Buildings

The proposal seeks a variation to Clause 4.3 – Height of Buildings that stipulates that the height of building is not to exceed 15m on the subject site.

The proposed building has an overall height of 16.5m (RL 38.395) to the roof of the lift core and stairwell. The proposal breaches the height by 1.5m to the roof of the lift core, representing a variation of 10%. The majority of the height breach is a result of the provision of the communal open space on the roof, and access to the roof via the lift and stairwell.

Figure 10 – Elevation plans showing height exceedance. Left: Northern elevation as viewed from Beaufort Street; Right: Western Elevation as viewed from Berwick Street.

Figure 11 – Elevation plans showing height exceedance. Left: Eastern/rear elevation; Right: Southern Elevation.

Figure 12 – Section A-A Plan showing extent of height variation sought

Figure 13 – Section C-C & D-D Plans showing extent of height variation sought

Figure 14 – 3D Perspectives showing extent of height variation sought

Clause 4.6 – Variation to Building Height

Clause 4.6 allows the consent authority to vary development standards in certain circumstances and provides an appropriate degree of flexibility to achieve better design outcomes. The consent authority may grant the exception as the Secretary’s concurrence can be assumed where clause 4.6 is adopted as per the Department of Planning Circular PS 18-003, dated 21 February 2018.

The applicant has submitted a written request to vary the development standard for building height – Refer to Attachment 7.

Based on various case laws established by the Land and Environment Court of NSW such as Four2five P/L v Ashfield Council [2015] NSWLEC 9, Randwick City Council v Micaul Holdings P/L [2016] NSW LEC7 and Zhang and anor v Council of the City of Ryde [2016] NSWLEC 1179, a 3 part assessment framework for a variation request proposed under clause 4.6 has been considered and an assessment of the proposed variance, following the 3 part test is discussed in detail below.

The 3 preconditions which must be satisfied before the application can proceed are as follows:

1.      Is the proposed development consistent with the objectives of the zone?

Zone R4 High Density Residential

1       Objectives of zone

·        To provide for the housing needs of the community within a high density residential environment.

·        To provide a variety of housing types within a high density residential environment.

·        To enable other land uses that provide facilities or services to meet the day to day needs of residents.

Applicant’s justification:

The proposal ensures that the high density nature of the zone is retained and there is not a significant change to the character of the locality. In addition, the proposal complements and enhances the local streetscape by virtue of careful siting of the development.

Planner’s Comment:

The proposal is for a ‘centre based child care facility’ and ‘residential flat building’ which are both permissible land uses within the zone with consent. The proposal meets the objectives of the zone, as it provides housing within a high density residential context, and the child care centre caters for and provides a service which meets the needs of the community.

2.      Is the proposed development consistent with the objectives of the development standard which is not met?

Clause 4.3 Height of building

(1)  The objectives of this clause are as follows:

(a)  to minimise the visual impact of development and ensure sufficient solar access and privacy for neighbouring properties,

(b)  to ensure development is consistent with the landform,

(c)  to provide appropriate scales and intensities of development through height controls.

Applicant’s justification:

The current development proposal is predominantly consistent with the building height, with the exception of a small portion of the building and lift overrun. The proposal remains consistent with the objectives based on the following:

·        Non-compliance is minor in nature with the majority of the building being compliant with the building height control and with the lift and stairwell overrun recessed, its impact to the streetscape is negligible as it will be visually unnoticeable when viewed from the street level.

·        Due to the minor nature of the variation it will not have any adverse amenity impacts. In this regard it is noted:

The variation will be visually unnoticeable and will have no adverse impact on the physical bulk, height or scale of the development.

The variation will not lead to a reduction in solar penetration on site or to adjoining properties nor will it lead to sunlight loss or overshadowing.

The proposed variation will not lead to view loss or interrupt on views to and from the site.

The proposed variation will not lead to a reduction in privacy afforded to existing residents or future residents of the proposal.

·        The proposal has been designed to ensure that privacy impacts are mitigated that the proposal will not obstruct existing view corridors.

·        The proposed development will permit the site to develop to its full zoning potential whilst complementing the future vision envisioned for the site by providing an attractive mixed use building that provides good address to the street frontage and complying with key planning controls applying to the proposal.

·        The proposal is not located within a low-density area and the proposal represents an appropriate built form on the site.

As outlined above, the proposal remains consistent with the underlying objectives of the control and as such compliance is considered unnecessary or unreasonable in the circumstances. The above discussion demonstrates that there are sufficient environmental planning grounds to justify the departure from the control.

Planner’s comment:

The objectives of the building height standard are to enable appropriate development density to be achieved and to ensure that the height of the building is compatible with the character of the locality. The additional height sought is excessive and results in adverse impacts on the streetscape and neighbouring properties with respect to bulk and scale and unacceptable overshadowing.

The proposed building will stand an additional storey higher than the neighbouring residential flat building at 62-66 Berwick Street, and also proposes a roof top terrace; which will adversely impact solar access to north facing private open space and living areas of 6 out of 17 units, and portions of the ground floor communal open space of the adjoining residential flat building.

The application has not adequately demonstrated that the variation to the height would allow the development to maintain the provision of adequate solar access for the subject site or the adjoining property to the south. With inadequate provision of building separation and setbacks, the excessive height is therefore not considered appropriate as it will result in a building that is inconsistent with the desired future character of the area.

In addition, the building is massed in a way that presents an excessively bulky form in the side setbacks and the additional height sought contributes to the visual bulk of the proposed development, which is in excess of the bulk and scale as well as site coverage.

The departure sought is significant and would unreasonably impact on adjoining properties. The additional height results in the appearance of bulk when viewed from the existing streetscape and would impinge on the changing streetscape that is anticipated for the immediate area. Given that the proposed development does not respond to the site or fails to comply with relevant built form controls, and compromises relationships with adjoining development, the proposal is considered to be inconsistent with the objectives of height requirements and development within the R4 zone.

3.      a) Is compliance with the development standard unreasonable or unnecessary in the circumstances of the case?

Applicant’s justification:

Strict compliance with the prescriptive building height requirement is unreasonable and unnecessary in the context of the proposal and its particular circumstances. The proposed development meets the underlying intent of the control and is a compatible form of development that does not result in unreasonable environmental amenity impacts.

The proposal will not have any adverse effect on the surrounding locality, which will be characterised by residential development of comparable height and character. The proposal promotes the economic use and development of the land consistent with its zone and purpose.

Planner’s comment:

The applicant’s request has not demonstrated that compliance with the standard is unreasonable or unnecessary in this instance, or that there are sufficient environmental planning grounds to justify the contravention. The proposal is not in the public interest given the poor amenity outcome for the subject development, its overshadowing impact to the adjacent site and the excessive bulk and scale of the building. It is considered, therefore, that the compliance with the Development Standard is not unreasonable or unnecessary in the circumstances of the case.

b) Are there sufficient environmental planning grounds to justify contravening the development standard and therefore is the applicant’s written justification well founded?

Given that the proposed development does not respond to the site, and results in adverse amenity impacts to neighbouring sites, the proposal is considered to be inconsistent with the objectives of building height and development within the R4 zone, and as such does warrant support of the departure. In this regard, the exception is not well founded and cannot be supported.


 

Conclusion:

The applicant’s written request has not adequately addressed the matters required to be demonstrated by Clause 4.6 subclause (3). Council is further dissatisfied that the proposed development will be in the public interest because it is inconsistent with the objectives of the particular standard and the objectives for development within the R4 zone in which the development is proposed to be carried out.

It is the view of Council officers that justification provided is unsatisfactory and having considered the application on its merit, the exception to the maximum building height development standard is not supported.

Draft Environmental Planning Instruments

(a)     Draft Environment State Environmental Planning Policy

The draft SEPP will combine seven existing SEPPs into one accessible instrument. The new SEPP will repeal and replace:

·        State Environmental Planning Policy No. 19—Bushland in Urban Areas

·        State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011

·        State Environmental Planning Policy No. 50—Canal Estate Development

·        Greater Metropolitan Regional Environmental Plan No. 2—Georges River Catchment

·        Sydney Regional Environmental Plan No. 20—Hawkesbury-Nepean River (No.2-1997)

·        Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005

·        Willandra Lakes Regional Environmental Plan No. 1—World Heritage Property.

Comment:

The draft SEPP has been considered for the proposed development and is only affected by Greater Metropolitan Regional Environmental Plan No. 2—Georges River Catchment which has already been assessed as above.

Development Control Plans

(b)     Holroyd Development Control Plan 2013

HDCP 2013 contains general controls which relate to all developments under Part A, residential controls under Part B, and child care centre controls under Part I.

A comprehensive HDCP compliance table is attached to this report at Attachment 6. A summary of the DCP non-compliances is provided in the following table.


 

 

PART A – GENERAL CONTROLS

3

Car Parking

 

Minimum Parking Spaces

 

Bicycle Parking - Residential

Minimum residential spaces required:

·    Studio / 1 bed. unit = 0.5

·    2 bed unit = 0.5

·    3+ bed unit = 0.5

·    Visitor = 0.1 per unit.

Residential = 18 x 0.5 = 9

Visitor = 18 x 0.1 = 1.8

Total required = 10.8 (rounded up to 11)

 

Provided = 7 bicycle spaces

3.5

Access, Manoeuvring and Layout

 

Driveways shall be setback a minimum of 1.5m from the side boundary.

Driveway is setback 1.255m from eastern boundary.

7

Stormwater Management

Council’s Development Engineer has reviewed the proposal and outlined that proposed development cannot be supported. Engineering matters raised form part of the reasons for refusal within the Draft Notice of Determination.

8

Flood Prone Land

The site is identified as flood prone in Council’s mapping. The proposal was referred to Council’s Development Engineer for comment who has outlined that the submitted survey plan does not correspond with levels as identified in Council’s mapping system – The variation of levels being in the extent of approximately 6.0m. In addition, the proposal comprises of a child care centre which is identified within the sensitive land use category in Table 7 – Land Use Categories for Development upon Flood Prone Land – Section 8 – Flood Prone Land in Part A of HDCP 2013. In this regard, the finished floor level (FFLs) shall be equal to or greater than the PMF level in accordance with the Flood Risk Precincts (FRPS) in Part A of HDCP 2013. Given the submitted survey plan is incorrect, the proposal fails to provide the required levels for the proposal and there is inadequate information to support the development. In this regard, the proposal is not supported and engineering matters raised form part of the reasons for refusal contained within the draft notice of determination.

10

Safety and Security

 

Design new development to reduce the attractiveness of crime by minimising, removing or concealing crime opportunities.

The building entries for the child care centre and residential apartments are not easily identifiable from the street and hidden between the outdoor play spaces and create opportunities for concealment also due to the narrow width of the pedestrian accesses.

 

Incorporate and/or enhance opportunities for effective natural surveillance by providing clear sight lines between public and private places, installation of effective lighting, and the appropriate landscaping of public areas.

Design does not provide for passive surveillance with clear sightlines between public domain and building entrances as a result of the outdoor spaces within the front setback areas.

 

When incorporating crime prevention measures in the design of new buildings and spaces, apply subtle design techniques to blend into facades and places, and to be sympathetic with the quality of the streetscape.

Proposal is not considered to provide adequate crime prevention measures through design which are sympathetic to the quality of the streetscape.

11

Waste Management

Council’s Waste Management Officer has reviewed the proposal and advised that the waste arrangements are unsatisfactory. The proposal is not supportable with regards to waste management and this forms part of the reasons for refusal contained within the draft notice of determination.

PART B – RESIDENTIAL CONTROLS

1.2

Fences

Front fencing is proposed in the form of 1.5m-2m high fencing bounding the outdoor play spaces along both street frontages. This fencing is setback 1m and 2m from Beaufort St and Berwick St respectively.

 

The proposed fencing is solid in construction with landscaping forward of the fencing. The front fencing proposed exceeds the maximum 1.5m height permitted for fencing of solid construction.

1.8

Sunlight Access

 

1 main living area of existing adjacent dwellings to receive 3 hours direct sunlight between 9am and 4pm, 22 June

The proposal has not provided a detailed assessment for overshadowing impact. No elevational shadow diagrams have been submitted to demonstrate the proposal will not adversely overshadow the adjoining three storey residential flat building to the south at 62-66 Berwick St between 9am-3pm, mid-winter.

 

Plan form shadow diagrams are provided for 9am, 12pm, 1pm and 3pm and identify the north facing private open space and living areas of 6 out of 17 units, of the adjoining RFB at 62-66 Berwick St as not receiving the minimum 3 hours sunlight, mid-winter, as required.

Min. 50% of required POS of existing adjacent dwellings to receive 3 hours direct sunlight between 9am and 4pm, 22 June.

6.2

Site Coverage

 

Maximum site coverage of any residential flat development shall not exceed 30% (Max. 370.85m²)

472.4m² (38%)

6.3

Setbacks

 

Front setback from principal street minimum 6m

6m provided to Berwick St to external walls

 

Outdoor play spaces encroach within front setback area.

 

Balconies of apartments on Levels 1-3 encroach within the front setback area.

 

Front setback from secondary street minimum 4m

4m provided to Beaufort St to external walls.

 

Outdoor play spaces encroach within front setback area.

 

Balconies of apartments on Levels 1-3 encroach within the front setback area.

6.5

Building Depth

 

Maximum internal depth of a RFB shall be 18m

Max. internal depth = 19.4m

6.8

Building entry and pedestrian access

 

Building entries shall be visible from the street, sheltered and well lit

The building entry to apartments from Berwick St is not clearly defined or easily identifiable. The residential pedestrian access is narrow and hidden between two outdoor play spaces of the child care centre and as such can be easily mistaken as the entry for the child care centre.

PART I – CHILDCARE CENTRES

2

Vehicular Access and Parking

 

Separate entry and exit driveways shall be provided where safe and convenient on street parking is not

otherwise available, to Council’s satisfaction, for the setting down and picking up of children. The design of such driveways shall ensure that inbound and outbound

vehicles are separated and that vehicles enter and leave the site in a forward direction.

Separate entry/exit driveways are not provided.

 

Council’s Traffic Engineer has reviewed the proposal and accompanying Traffic Report and raised issues relating to functionality and non-compliance of the basement car parking with respect to the internal layout, manoeuvring, driveways and traffic measures required. In this regard, the proposal is not supported and parking and traffic matters raised form part of the reasons for refusal contained within the draft notice of determination.

 

3

Acoustic and Visual Privacy

 

An acoustic assessment must be completed by a suitably qualified person.

                   

 

With respect to acoustic impacts, the submitted acoustic report provides no consideration for the use/impacts of noise from the child care centre. The report also did not have consideration of the use/impacts from the proposed 76 place child care centre on the residents on the site as well as adjoining neighbours. As such, projected noise levels have not been identified for the child care centre, and no acoustic fencing has been recommended or incorporated within the design of the centre to minimise the impact of noise generated by the child care centre on surrounding properties.

4

Indoor Spaces

 

Where achievable, windows of indoor play areas are to be located with a northern orientation and should receive at least three hours of sunlight between the hours of 9am and 3pm on June 21.

 

For locations where a northern orientation for indoor play areas is not achievable, they should be located where they will receive a minimum of 3 hours of sunlight, where possible.

It has not been adequately demonstrated that indoor spaces receive a minimum 3 hours of sunlight between 9am and 3pm, mid-winter as required by Section 4 – Indoor Spaces – Part I – Child Care Centres of HDCP 2013. In this regard, the design does not ensure that solar access to indoor spaces is optimised.

5

Outdoor Spaces

 

 

a) Located away from the main entrance of the child care centre, car parking areas or vehicle

circulation areas;

e) If the child care centre is located in a predominantly residential area, outdoor spaces are to be located away from the living/bedroom windows of surrounding dwellings;

g) Located away from areas where objects can be projected down onto play areas;

a) The outdoor play areas are located away from the main entrance to the childcare centre. Outdoor spaces are proposed adjacent to the basement car parking entry and within the front setback areas which is not supported,

e) The outdoor areas are located away from the bedrooms/living area of surrounding dwellings, however acoustic measures are not proposed to mitigate any potential noise impacts,

g) Apartments are located above the centre and there is potential for objects to fall onto the outdoor play spaces.

 

7

Fencing

 

Acoustic fences should not be higher than 2m. If a fence higher than 2m is unavoidable it must be contained within the development site with a 1.8m traditional lapped and capped boundary fence and the remaining height to be of thick, transparent perspex to ensure any views are maintained.

Acoustic fencing has not been considered and is proposed to minimise noise impacts.

8

Fire Safety & Emergencies

 

An evacuation plan  complying with AS3745-2002 Emergency Control Organisation and Procedures for Buildings, Structures and Workplaces shall be submitted as part of the Development Application

The evacuation plan indicates that there is only one emergency exit via the entry of the centre. This appears to be impractical having regard to the number of children proposed for the centre. An additional point of exit is not provided to assist with evacuation in the event of an emergency noting that there are also apartments above.

Any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4

There is no planning agreement or draft planning agreement associated with the subject Development Application.

The provisions of the Regulations

The regulations do not proscribe any relevant matters for consideration.

Any coastal zone management plan (within the meaning of the Coastal Protection Act 1979)

There is no Coastal Zone Management Plan applicable to the subject site.

The likely impacts of the development

The likely environmental, social and economic impacts of the development have been assessed and are considered satisfactory.

The suitability of the site for the development

The site is considered suitable for the proposed development.

Submissions made in accordance with the Act or Regulation

Advertised (newspaper)               Mail              Sign                 Not Required

In accordance with Part E - Public Participation of HDCP 2013, the proposal was publicly notified from 20 February 2019 to 13 March 2019. As a result of the notification, three (3) submissions were received.

The submissions are included at Attachment 13 to this report. The issues raised in the submissions are as follows:

Concern:

Overlooking to living areas and rear yards from proposed balconies and rooftop terrace. It is recommended that fixed louvre screens and high windows be provided in bedrooms and toilets.

Response:

The southern and eastern elevation of the proposal comprise of living rooms, balconies and bedrooms. Inadequate building separation is provided to both the southern and eastern boundaries.

Planter boxes are provided along all edges of the rooftop terrace which obstructs direct overlooking from rooftop to neighbouring sites. However, as a result of the inadequate separation provided to the eastern boundary from the communal open space, visual privacy impacts from the roof top is considered unacceptable.

Visual privacy between properties is considered unacceptable having regard to the inadequate building separation provided between properties. Accordingly, this is included as a reason for refusal within the Draft Notice of Determination.

Concern:

Location of basement car park entry/exit in close proximity to the boundary and noise impacts associated with the basement car park.

Concern is also raised with respect to the location of the basement driveway noting that Beaufort Street is intended to be closed in the future.

It is recommended that the basement entry be moved to another location.

Response:

Council’s Traffic Engineer has reviewed the proposal and raised concerns regarding the basement design and vehicular access arrangement. The setback of the driveway from the common boundary with 63A Bangor Street is 1.225m and does not comply with the minimum 1.5m driveway setback requirement as outlined within Holroyd Development Control Plan. Accordingly, the basement design and vehicular access is not supported and is included as a reason for refusal within the Draft Notice of Determination.

Council’s Traffic Engineer has raised no objections to the vehicular access to the basement being provided from Beaufort Street, having regard to the future closure of Beaufort Street further east of the site, and closure of Bangor Street at the intersection with Beaufort Street; as identified by Map 1 – Appendix K of Holroyd Development Control Plan.

With respect to acoustic impacts, the submitted acoustic report provides no consideration for car park noise or noise from mechanical plant. As such, the proposal does not implement any measures to mitigate noise impacts from the basement, which is unacceptable.

Concern:

Noise impacts from the child care centre.

Response:

With respect to acoustic impacts, the submitted acoustic report provides no consideration for the use/impacts of noise from the child care facility. The report also did not have consideration of the use/impacts from the proposed 76 place child care centre on the tenants on the site as well as adjoining neighbours, and the overall cumulative acoustic impacts of the proposed use.

The proposal is not supportable with regards to acoustic impacts and this forms part of the reasons for refusal contained within the draft notice of determination.

Concern:

Congestion that will occur in Beaufort Street as a result of pick up and drop off times associated with the child care centre, and employees and residents parking in Beaufort Street. Beaufort Street is a narrow street and concerns are also raised with regard to loss of on-street parking on Beaufort Street.

Response:

In accordance with Part A of Holroyd Development Control Plan, the minimum parking spaces required a child care centre is 1 per 4 children. The proposed child care centre is for a placement of 76 children and requires 19 parking spaces. The required 19 parking spaces for the child care centre is provided within Basement 1, and as such, all pickup and drop-off is expected to take place within the basement.

Should consent be granted, an Operational Management Plan (OMP) shall be enforced by way of conditions to encourage the use of the basement parking facility. The OMP shall detail how the child care centre will be managed to minimise impact on neighbouring properties (particularly on-street parking).

Concern:

Concern is raised to residents and parents parking vehicles at Berwick Street Reserve, which is a flood affected area, and parked vehicles blocking access to Duck Creek which transverses the reserve.

Response:

Vehicles are not permitted to park in Berwick Street Reserve. Vehicles that are parked in Berwick Street Reserve shall be reported to Council’s Compliance Team for investigation and action.

Section 7.11 of the Environmental Planning & Assessment Act 1979

The subject development requires the payment of contributions in accordance with Holroyd Section 94 Development Contributions Plan 2013.

In accordance with the currently indexed rates for the Guildford Centre contribution area, the following contributions apply:

·        6 x 1-bedroom dwellings – $8,694 x 6 = $52,164

·        9 x 2-bedroom dwellings – $14,703 x 9 = $132,327

·        3 x 3-bedroom dwellings – $20,000 x 3 = $60,000

·        credit for the existing 2 x 3-bedroom dwellings = $40,000

The required Section 7.11 contribution payable for the proposal is $204,491.

If consent were to be granted, a condition could be imposed requiring the payment of the contributions prior to the issue of a construction certificate.

The Public Interest

The public interest is served by permitting the orderly and economic use of land, in a manner that is sensitive to the surrounding environment and has regard to the reasonable amenity expectations of surrounding land users. In view of the foregoing analysis, it is considered that approval of the proposed development would be contrary to the public interest.

Disclosure of Political Donations and Gifts

The NSW Government introduced The Local Government and Planning Legislation Amendment (Political Donations) Act 2008 (NSW). This disclosure requirement is for all members of the public relating to political donations and gifts. The law introduces disclosure requirements for individuals or entities with a relevant financial interest as part of the lodgement of various types of development proposals and requests to initiate environmental planning instruments or development control plans.

The application and notification process did not result in any disclosure of Political Donations or Gifts.

Conclusion:

The Application has been assessed in accordance with the relevant requirements of the Environmental Planning and Assessment Act 1979, State Environmental Planning Policy No. 55 – Remediation of Land, State Environmental Planning Policy (Affordable Rental Housing) 2009, State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development, State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017, Education and Care Services National Regulations, State Environmental Planning Policy (Infrastructure) 2007, Holroyd Local Environmental Plan 2013 and the Holroyd Development Control Plan 2013. Based on this assessment, the application is considered to be unsatisfactory.

Consultation:

There are no further consultation processes for Council associated with this report.

Financial Implications:

There are no further financial implications for Council associated with this report.

Policy Implications:

There are no policy implications for Council associated with this report.

Communication / Publications:

The final outcome of this matter will be notified in the newspaper. The objectors will also be notified in writing of the outcome.

 

Report Recommendation:

 That Development Application 2019/11/1 for demolition of existing structures and construction of a 4 storey building comprising of a 76 place child care centre on the ground floor with 18 residential units above with two basement car parking levels for 36 vehicles; pursuant to Affordable Rental Housing SEPP 2009 be refused due to the reasons provided within the draft Notice of Determination contained at Attachment 8.

 

Attachments

1.      SEPP ARH 2009 Compliance Table

2.      ADG Compliance Table

3.      SEPP (Educational Establishments & Child Care Facilities) Compliance Table

4.      HLEP 2013 Compliance Table

5.      Child Care Planning Guideline Compliance Table

6.      HDCP 2013 Compliance Table

7.      Accompanying Clause 4.6 Variation Request to Building Height

8.      Draft Notice of Determination

9.      Internal Architectural Plans

10.    External Architectural Plans

11.    Landscape Plans

12.    Acoustic Report

13.    Public Submissions  

 


DOCUMENTS
ASSOCIATED WITH
REPORT LPP053/19

Attachment 1

SEPP ARH 2009 Compliance Table


Cumberland Local Planning Panel Meeting

 14 August 2019


 


 


 


DOCUMENTS
ASSOCIATED WITH
REPORT LPP053/19

Attachment 2

ADG Compliance Table


Cumberland Local Planning Panel Meeting

 14 August 2019


 


 


 


 


 


 


 


 


 


DOCUMENTS
ASSOCIATED WITH
REPORT LPP053/19

Attachment 3

SEPP (Educational Establishments & Child Care Facilities) Compliance Table


Cumberland Local Planning Panel Meeting

 14 August 2019


 


 


DOCUMENTS
ASSOCIATED WITH
REPORT LPP053/19

Attachment 4

HLEP 2013 Compliance Table


Cumberland Local Planning Panel Meeting

 14 August 2019


 


 


 


DOCUMENTS
ASSOCIATED WITH
REPORT LPP053/19

Attachment 5

Child Care Planning Guideline Compliance Table


Cumberland Local Planning Panel Meeting

 14 August 2019


 


 


 


 


 


 


 


 


 


 


DOCUMENTS
ASSOCIATED WITH
REPORT LPP053/19

Attachment 6

HDCP 2013 Compliance Table


Cumberland Local Planning Panel Meeting

 14 August 2019


 


 


 


 


 


 


 


 


 


 


 


DOCUMENTS
ASSOCIATED WITH
REPORT LPP053/19

Attachment 7

Accompanying Clause 4.6 Variation Request to Building Height


Cumberland Local Planning Panel Meeting

 14 August 2019


 


 


 


 


DOCUMENTS
ASSOCIATED WITH
REPORT LPP053/19

Attachment 8

Draft Notice of Determination


Cumberland Local Planning Panel Meeting

 14 August 2019


 


 


 


 


 


 


 


 


 


 


DOCUMENTS
ASSOCIATED WITH
REPORT LPP053/19

Attachment 9

Internal Architectural Plans


Cumberland Local Planning Panel Meeting

 14 August 2019


 


 


 


 


 


 


 


 


 


 


DOCUMENTS
ASSOCIATED WITH
REPORT LPP053/19

Attachment 10

External Architectural Plans


Cumberland Local Planning Panel Meeting

 14 August 2019


 


 


 


 


 


 


 


DOCUMENTS
ASSOCIATED WITH
REPORT LPP053/19

Attachment 11

Landscape Plans


Cumberland Local Planning Panel Meeting

 14 August 2019


 


 


 


 


 


 


 


 


DOCUMENTS
ASSOCIATED WITH
REPORT LPP053/19

Attachment 12

Acoustic Report


Cumberland Local Planning Panel Meeting

 14 August 2019


 


 


 


 


 


 


 


 


 


 


Cumberland Local Planning Panel Meeting

 14 August 2019


 


 


 


 


DOCUMENTS
ASSOCIATED WITH
REPORT LPP053/19

Attachment 13

Public Submissions


Cumberland Local Planning Panel Meeting

 14 August 2019


 


 


Cumberland Local Planning Panel Meeting

14 August 2019

 

Item No: LPP054/19

Section 4.56 Modification Application - 331 Blaxcell Street, South Granville

Responsible Division:                    Environment & Planning

Officer:                                              Executive Manager Development and Building

File Number:                                    DA-290/2017/A  

 

 

Application lodged

31-May-2019.

Applicant

Zinnia Group C/- Navon Solutions.

Owner

Ms I Itaoui.

Application No.

DA-290/2017/A.

Description of Land

331 Blaxcell Street, South Granville being Lots 40 and 41 Sec 1 in DP 5121.

Proposed Development

Section 4.56 application to modify an approved child care facility to provide additional general purpose rooms and a rooftop outdoor play area.

Site Area

1,340.6 Square metres.

Zoning

R4 High density residential zone.

Disclosure of political donations and gifts

Nil disclosure.

Heritage

Site is not heritage listed.

Principal Development Standards

Height of Building

 

Permissible: 11 metres.

Proposed: 13.6 metres.

 

And

 

Floor space ratio

 

Permissible: 0.8:1.

Proposed: 0.798:1.

Issues

Height of the child care centre building.

Summary:

1.      Development application Number 290/2017 was approved by the Land and Environment Court on the 9 February 2018 for demolition of the existing structures and construction of a three storey child care centre with ancillary signage as deferred commencement consent subject to conditions.

2.      2The deferred commencement compliance notice for the development was issued on 8 April 2019.

3.      A Section 4.56 modification application Number 290/2017/A was received on the 27 May 2019 to modify an approved child care facility to provide additional general purpose rooms and a rooftop outdoor play area to the centre.

4.      The application was publicly notified to occupants and owners of the adjoining properties for a period of 14 days between Tuesday 11 June and Tuesday 25 June 2019. In response, there were no submissions received.

5.      The variations are as follows:-

Control

Required

Provided

% variation

Height control of the Parramatta Local Environmental Plan 2011 Clause 4.3.

11 metres.

13.6 metres.

23.6%

 

6.      The application is recommended for conditional approval subject to the conditions as provided in the attached schedule.

7.      The application is referred to the Panel for determination as the modified development contravenes the height requirement by more than 10%.

Report:

Subject Site And Surrounding Area

The subject site is legally described as Lots 40 and 41 Section 1 in DP 5121 and is known as 331 Blaxcell Street, South Granville. The site is located on the eastern side of Blaxcell Street, within the R4 - High Density Residential zone, between Eve Street to the north-west and Markey Street to the south-west. The site has a frontage of 24.36 metres to Blaxcell Street and occupies an area of 1,340.6 square metres.

The site has a fall towards the rear by between 1.17 and 1.24 metres.

There is a single storey dwelling house with a detached garage on the site. A small garden shed is situated within the rear yard.

There is a mixture of housing types within the locality ranging from older style post World War 2 housing to recently constructed medium density developments. There are multi dwelling developments close by situated at 319 to 325, 335 to 339 and 334 to 336 Blaxcell Street.

The Dellwood Street Neighbourhood Shopping Centre is situated approximately 220 metres to the north.

The location of the site is shown below.

The aerial photo of the site is shown below.

Photos of the site are shown below.

History

Development application 290/2017 was approved as a deferred commencement consent by the Land and Environment Court on 9 February 2018. The deferred commencement compliance notice (Operational consent) associated with the consent was issued on 8 April 2019.

Pre lodgement Application

The applicant had a pre lodgement meeting on the 13 February 2019 and the applicant was advised that the height of the modified development breached the height limitation applying to the land. Furthermore, the applicant was also advised that noise impacts and privacy would need to be addressed as part of the proposal.

Description of the Proposed Development

Council has received a Section 4.56 modification application to undertake changes to the approved child care centre including alterations to the second storey and the addition of a rooftop outdoor play area for the children and associated access stairwell and lift.

 

The ground floor and first floor of the approved child care centre is not subject to any change and there is no increase in the number of children to attend the centre. In detail, the changes are:-

Second floor

The children’s outdoor play area is reduced in area from 260 square metres to 140 square metres being a reduction of 120 square metres.

The size of the General Purpose rooms 1 and 2 are modified / reduced in area as follows:-

Approved General Purpose Rooms

Modified General Purpose Rooms

1 - 32.96 square metres.

1 - 24.11 square metres (Reduction of 8.85 square metres).

2 - 40.49 square metres.

2 - 32.06 square metres (Reduction of 8.43 square metres).

There are three new General purpose rooms proposed as follows:-

General Purpose Room 3 - 31.5 square metres.

General Purpose Room 4 - 32.29 square metres.

General Purpose Room 5 - 30.68 square metres.

Hence there are now five general purpose rooms which will be used for unsettled children, a library, lego room, consultation and parent room. The five rooms are part of the overall service to be offered by the centre.

Roof top

The top floor comprises a children’s outdoor play area occupying 285 square metres, which is a net increase of 165 square metres over and above the initial playground approval.

The rooftop playground consists of a lift and small utility area at the north east corner of the play area, a stairwell at the south east corner and a second stairwell access at the north west corner of the play area.

The play area is shown to incorporate landscaping via the use of planter boxes, a light weight shade sail structure, open pergola, seating and soft fall areas.

The cross section plans are showing the playground area having parapets and or screens that are 1.390 metres in height.

The rooftop play area has greater setbacks from the side and rear boundaries than the ground and first storey of the building to address potential issues of privacy and solar efficiency loss towards the south.

The intention of the proposal is to enhance the learning experience to the approved facility by providing for an additional outdoor play area. The outdoor play area will be useful for children with special needs who will attend the centre.

Car park area

The approved car park is not subject to any change because there is no increase in the number of children to attend the centre.

Applicants Supporting Statement

The applicant has provided a Statement of Environmental Effects prepared by Navon Solutions and dated 19 May 2019 which was submitted on May 27 in support of the application. In addition, a separate statement similar to a Clause 4.6 variation to the height variation has been prepared by Navon Solutions and dated June 2019.

Contact with Relevant Parties

The assessing officer has undertaken a site inspection of the subject site and surrounding properties and has been in regular contact with the applicant throughout the assessment process.

Internal Referrals

Development Engineer

The modification application was referred to Council’s Development Engineer for comment who has advised that there is no objection to the modification sought and no engineering conditions are required to be altered.

Environment and Health

The modification application was referred to Council’s Environment and Health Officer for comment who has advised that the changes sought are acceptable. There are no objections to the modification sought and conditions are provided addressing matters of noise, plan of management and site operations.

Children’s Services

The modification application was referred to Council’s Children’s Services team who have advised that there are no significant objections to the changes that are sought.

External Referrals

The modification application was not required to be referred to any external government authorities for comment.


 

Planning Comments

Section 4.56 of the Environmental Planning and Assessment Act 1979 (as amended) allows Council to modify a development consent granted by the Court if:-

a)      it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all)

Comment

The modification seeks minor alterations to the second storey of the child care centre as well as an addition of a roof top play area with amenities for children. The additions are considered as being additional amenities for the child care centre. The number of children, the car park area, the ground floor and first floor are not subject to any change. It is considered that the development is substantially the same as that initially approved.

b)      it has notified the application in accordance with:

i.    the regulations, if the regulations so require, or

ii.   a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent

Comment

The modification application was notified as per the requirements of the Parramatta Development Control Plan guidelines between Tuesday 11 June and Tuesday 25 June 2019. There were no submissions to the modification that is sought.

c)      it has notified, or made reasonable attempts to notify, each person who made a submission in respect of the relevant development application of the proposed modification by sending written notice to the last address known to the consent authority of the objector or other person

Comment

There were two objections to the original development application. Council records show that both residents who previously objected were notified of the modification application. The residents who previously objected to the development did not object to the modification that is being sought.

d)      it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be.


 

Comment

There were no submissions received to the modification that is being sought.

The provisions of any Environmental Planning Instruments (EP&A Act s4.15 (1)(a)(i))

State Environmental Planning Policies

The proposed development is affected by the following State Environmental Planning Policies:

(a)     State Environmental Planning Policy No. 55 - Remediation of Land (SEPP 55)

Clause 7 of SEPP 55 requires Council to be satisfied that the site is suitable or can be made suitable to accommodate the proposed development. This is a modification to the original development application. Appropriate reports have been submitted addressing land contamination matters within the initial development application.

There are no changes to site conditions and there is no change to any environmental conditions attached to the development consent issued. As such, the matters addressing the State Policy do not require further review for the purpose of this application.

(b)     State Environmental Planning Policy 64 – Advertising and Signage

The approved development includes the erection of one sign being a business identification sign facing Blaxcell Street. There is no change to the sign as part of the modification. A detailed assessment of any sign on site is not required in this instance.

(c)     State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017

State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 is applicable to the modification application. An assessment shows that the modification application is compliant with the relevant provisions of the State Policy. A detailed assessment of the modification application using the State Policy is attached within Appendix A.

Child Care Planning Guideline (August 2017) Planning and Environment

The Child Care Planning Guideline associated with the State Policy is also relevant to the modification application and this part addresses the Design Quality Principles. The modification application is found to be compliant with all the Design Quality Principles 1 to 7. A detailed assessment of the Design Quality Principles is addressed at Appendix 1.


 

Considerations C1 to C38

A number of considerations prevail within the Guidelines with the development being compliant with all the relevant provisions specified at Parts C1 to C38. Further to the above under Parts C1 to C38, the following comments are provided:-

·        The development minimises adverse impacts on neighbouring properties in terms of excessive privacy and overshadowing. In this regard, adequate levels of privacy is provided. Furthermore, there is no significant increase in the level of shadowing created by the addition.

·        The site does not front onto an arterial road or a Classified Road. The site is not located adjacent to a railway line.

·        The site is located close to the Dellwood Shopping Centre and adjacent to a local bus stop.

·        There are no known natural hazards situated on the site or adjoining to the site.

·        An acoustic report has been submitted with the development application which demonstrates that the modified development would be satisfactory in relation to noise impacts.

·        The approved hours of operation are 7 am to 6 pm Monday to Friday and consistent with the Guidelines. The hours of operation are outlined in condition 56 of the development consent which is not subject to change.

·        There is no change to the car park and there is no change to the number of children to be placed on site.

Under Part C12, the building height should be consistent with other buildings within the locality. In this situation, a three storey building has been approved on site. The application now seeks to incorporate a rooftop play area into the design. The rooftop play space is open to the elements although it includes a lift access, stairwell, shade structure, parapet and planting, all of which varies from the building height limit of 11 metres.

The modified child care centre is still three storeys in height and consistent with the expected height of any future residential apartment building that could be developed on land along Blaxcell Street on land that is within the R4 High Density Residential zone.

Land to the south east is within zone R3 (Medium Density Residential), however the planning controls also allows for buildings to reach 11 metres in height (Also equivalent to three storeys).

Generally, the height of the child care centre in storeys is consistent with the planning controls for the locality.

The elements forming the roof top play area, varies from the building height limit imposed by the Parramatta Local Environmental Plan 2011 in metres however the height variation is determined as being acceptable. The applicant has lodged an appropriate statement addressing the variation to the Parramatta Local Environmental Plan which is determined as being acceptable. The matter is addressed under the Parramatta Local Environmental Plan 2011 below.

Part 4

Part 4 of the Guidelines comprises various controls specific to the National Regulations. The modification application is assessed as being compliant with the various guidelines. The guidelines is addressed at the Appendix A attached to the report.

(d)     Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005

The site is located within the Sydney Harbour Catchment area and SREP (Sydney Harbour Catchment) 2005 is applicable to the modification application. The modification application raises no issues as to consistency with the requirements and objectives of the planning instrument and associated development control plan.

(Note: the subject site is not identified in the relevant map as ‘land within the ‘Foreshores and Waterways Area’ or ‘Wetland Protection zone’, is not a ‘Strategic Foreshore Site’ and does not contain any heritage items. Hence the majority of the SREP is not directly relevant to the modification sought).

Local Environmental Plans

Permissibility

The approved use is defined as a “Centre Based Child Care Facility” under the Parramatta Local Environmental Plan 2011 and defined as:-

(a)     a building or place used for the education and care of children that provides any one or more of the following:-

(i) long day care,

(ii) occasional child care,

(iii) out-of-school-hours care (including vacation care),

(iv) preschool care, or

(b)     an approved family day care venue (within the meaning of the Children (Education and Care Services) National Law (NSW)),

Note.

An approved family day care venue is a place, other than a residence, where an approved family day care service (within the meaning of the Children (Education and Care Services) National Law (NSW)) is provided.

but does not include:

(c)     a building or place used for home-based child care or school-based child care, or

(d)     an office of a family day care service (within the meanings of the Children (Education and Care Services) National Law (NSW)), or

(e)     a babysitting, playgroup or child-minding service that is organized informally by the parents of the children concerned, or

(f)      a child-minding service that is provided in connection with a recreational or commercial facility (such as a gymnasium) to care for children while the children’s parents are using the facility, or

(g)     a service that is concerned primarily with providing lessons or coaching in, or providing for participation in, a cultural, recreational, religious or sporting activity, or providing private tutoring, or

(h)     a child-minding service that is provided by or in a health services facility, but only if the service is established, registered or licensed as part of the institution operating in the facility.

A “Centre Based Child Care Facility” is a permitted land use within the R4 High Density Residential zone that applies to the land. A business identification sign attached to the child care centre is also permitted with consent.

The relevant matters to be considered under the Parramatta Local Environmental Plan 2011 and the applicable clauses for the proposed development are summarised below.

 

DEVELOPMENT STANDARD

COMPLIANCE

DISCUSSION

4.3 Height of Buildings

 

11 metres

 

Propose 13.6 metres.

No

The variation is 23.6%.

 

The variation occurs across the entire top floor area being the children’s playground, lift access, stair access, pergola and shade sail, planter boxes and shrubs.

 

A justification statement similar to a Clause 4.6 variation request has been lodged to support the modification application which is addressed below.

4.4 Floor space ratio

 

0.8:1

Propose 0.798:1.

Yes

Compliance is achieved.

 

(a)     Clause 4.6 - Exceptions to Development Standards of the Parramatta Local Environmental Plan

The clause will not be applicable to this application. In accordance with case law, as outlined in the Land Environment Court Case of Gann & Anor v Sutherland Shire Council [2008] that there is power to modify a development application where the modification would result in the breach of development standards. The court took the view that development standards within an LEP did not operate to prohibit the grant of consent if they were not complied with (and no objection pursuant to SEPP No. 1 (now cl 4.6) had been lodged). Notwithstanding, the court held that despite a SEPP No. 1 objection not being required, Section 96(3) (now known as cl 4.55(3)) of the Environmental Planning and Assessment Act 1979 (The Act) still requires the consent authority to take into consideration those matters referred to in Section 79C (now Cl4.15) of the Act. This case law has been applied to Clause 4.6 of the Standard instrument (on which the Parramatta Local Environmental Plan 2011 is derived).

Variation to building height

The maximum building height permitted on the site is 11 metres. The original development application was approved at 11 metres or less (three storeys) and hence the height of the child care centre was fully compliant with the provision. Under the S4.56 modification application, the number of storeys within the centre remain the same; however, the roof top play area being the lift access, stairwell, shade structure, parapet and planting reaches a maximum height of 13.6 metres being a maximum variation of 23.6%.

Generally, the rooftop play area is open to the elements and neither of the elements form a defined fourth storey to the building.

The applicant has addressed the objectives of Clause 4.3 as follows:

Applicant’s comments

Objective (a):

The site and adjoining properties are prescribed with an 11 metre high building height limit which generally indicates 3 storey buildings within the area. Sites located towards the commercial area to the north comprise an increased building height to 15 metres and properties to the south comprise 2 storey building heights.

The modification maintains the three storey building form with the variation being the parapet / screen, lift well, utility area, shade sail structure and stairwells. The parapet comprises a minor variation of 356 mm or 2.5% to the west elevation and 502 mm or 3.6% to the east elevation. The proposed parapet is indistinguishable in the greater context of surrounding building height transitions and is considered suitable on this site and surrounding area. The building height variation also comprises the following components:-

·        The proposed lift well and utility area is setback approximately 9 metres from the rear boundary and 6 metres from the northern side setback.

·        The proposed eastern stairwell is setback approximately 9 metres from the rear boundary and 4.5 metres from the southern side setback.

·        The proposed western stairwell is setback approximately 19.5 metres from the front boundary and 6 metres from the northern side setback.

·        The proposed shade structure is setback approximately 8 metres from the northern side setback, 6.5 metres from the southern side setback and 19.5 metres from the rear boundary.

The features identified are setback from the surrounding property boundaries and streetscape. The features are setback further from the boundaries than the storeys below which limits any visibility of these features from the neighbouring properties.

Objective (b):

There is minimal visual impact and there is reasonable view sharing, solar amenity and privacy outcomes. The proposed rooftop area is setback from the property boundaries which minimises impacts to the adjoining properties.

The rooftop is accessible but the privacy of the surrounding area is maintained. The rooftop is setback from the side boundaries and acoustic and visual separation between properties is provided. Furthermore, the landscape plan discourages the use of the periphery of the rooftop area. Any outlook is oriented over the roof of any surrounding properties.

Children with access to the rooftop area are no older than 6 years and would reach an average height of 1.25 metres. The parapet is 1.4 metres in height and thus privacy is maintained. The child care centre operates from 7 am to 6 pm but with intermittent use of the rooftop area.

Overshadowing of adjoining properties is minimal as shown within the shadow diagrams.

Objective (c):

The development is designed to be sympathetic to the nearest heritage conservation area located approximately 100 metres to the south and 150 metres to the north. The proposed building height variation maintains the visual curtilage of the heritage items and areas in the surrounding area.

Objective (d):

There is minimal impact to any historic views within the locality.

Objective (e):

The site is located within the R4 High Density residential zone but adjoins the R3 Medium Density Residential zone. The proposed building is designed to maintain the character and scale of the low density residential area located to the south.

Objective (f):

The development retains reasonable solar access and sky exposure to the surrounding area including the public domain. Overshadowing of the adjoining properties is minimal as demonstrated within the shadow diagrams.

Planning comment

The discussion provided by the applicant is supported. In this regard, the development is consistent with the objectives of the height standard as the height of the modified child care centre in storeys is consistent with the height of future buildings with the R4 (High Density Residential zone) and the R3 (Medium Density Residential zone) within the locality.

The variation is limited to the playground elements being the parapet / screen, lift well, utility area, shade sail structure and stairwells. These are utilities or amenities to support the rooftop playground and do not function as an additional storey. In addition:-

·        There is no appreciable increase in shadowing to the south.

·        The rooftop playground has a smaller footprint than the ground, first and second floors of the child care centre below.

·        The rooftop playground is setback away from the side boundaries of the site to minimise adverse impacts such as solar access and privacy issues.

·        The degree of privacy is satisfactory to all boundaries.

·        The rooftop playground does not contributes to mass, bulk and scale of the building.

·        The floor space ratio of the building is compliant with the standard applying to the site.

When considering the above, the variation sought is considered as being acceptable to the site.

The provisions of any proposed instrument that is or has been the subject (EP&A Act s4.15 (1)(a)(ii))

(a)     Draft State Environmental Planning Policy (Environment)

There are no draft State Environmental Planning Policies that will apply to the Section 4.56 modification application.

The provisions of any Development Control Plans (EP&A Act s4.15 (1)(a)(iii))

The Parramatta Development Control Plan provides guidance for the design and operation of development to achieve the aims and objectives of the Parramatta Local Environmental Plan 2011.

Parramatta Development Control Plan 2011

a)      Section 5.2 - Child Care Centres

The relevant objectives and requirements of the Child Care Centres Part of Parramatta Development Control Plan 2011 have been considered and a relevant assessment is provided at Appendix A.

The Child Care Planning Guideline will over ride many of the controls specified and as such, the controls now have limited applicability to any child care centre.

When considering the relevant controls, it is identified that the application is not compliant with Part 5.2.3.2 - Building Height and Design. This is related to the height variation of the roof top play area under Clause 4.3 of the Parramatta Local Environmental Plan 2011. The height matter has been comprehensively addressed above and determined as being acceptable.

The modification is compliant with the remaining relevant provisions of the Parramatta Development Control Plan 2011 addressing child care centres.

The provisions of any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4 (EP&A Act s4.15(1)(a)(iiia))

There is no draft planning agreement associated with the subject Development Application.

The provisions of the Regulations (EP&A Act s4.15 (1)(a)(iv))

The modified development raises no concerns as to the relevant matters arising from the Environmental Planning and Assessment Regulations 2000 (EP&A Reg).

The Likely Environmental, Social or Economic Impacts (EP&A Act s4.15 (1)(b))

It is considered that the modified development will have no significant adverse environmental, social or economic impacts in the locality.

The suitability of the site for the development (EP&A Act s4.15 (1)(c))

The subject site and locality is not known to be affected by any natural hazards or other site constraints likely to have a significant adverse impact on the proposed development. Accordingly, it is considered that the modified development is suitable in the context of the site and surrounding locality.

Submissions made in accordance with the Act or Regulation (EP&A Act s4.15 (1)(d))

Advertised (newspaper)             Mail                Sign               Not Required

In accordance with Council’s Notification requirements contained within the Parramatta Development Control Plan 2011 and Clause 119(2) and (4) of the Environmental Planning and Assessment Regulation 2000, the modification application was publicly notified for a period of fourteen (14) days between Tuesday 11 June and Tuesday 25 June 2019. There were no submissions to the modification that is sought.

The public interest (EP&A Act s4.15(1)(e))

In view of the foregoing analysis, it is considered that the modified development, if carried out subject to the conditions set out in the recommendation below, will have no significant adverse impacts on the public interest.

Section 7.12 (Formerly S94a) Fixed Development Consent Levies

This part of the Act relates to the collection of monetary contributions from applicants for use in developing key local infrastructure.

Comments:

The modified development would require the payment of contributions in accordance with Council’s Section 94A Contributions Plans. In this regard, the additional cost of the development is reflected in an increase in contributions of $908.15. The new contribution amount is $19,424.85. Should the Panel support the modification application, Condition 4 of the development consent would need to be updated to reflect the change made.

Disclosure of Political Donations and Gifts

The applicant and notification process did not result in any disclosure of Political Donations and Gifts.

Conclusion:

The modification application has been assessed in accordance with the relevant requirements of the Environmental Planning and Assessment Act 1979, State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017, the Parramatta Local Environmental Plan 2011 and associated Parramatta Development Control Plan 2011. A variation to Clause 4.3 of the Parramatta Local Environmental Plan 2011 specific to height is sought.

Having regard to the assessment of the proposal from a merit perspective, Council may be satisfied that the development has been responsibly designed and provides for acceptable levels of amenity for future residents. It is considered that the proposal successfully minimises adverse impacts on the amenity of neighbouring properties. Hence the development, irrespective of the departure noted above, is consistent with the intentions of Council’s planning controls and represents a form of development contemplated by the relevant statutory and non-statutory controls applying to the land.

For these reasons, it is considered that the proposal is satisfactory having regard to the matters of consideration under Section 4.15 of the Environmental Planning and Assessment Act 1979, and the modification may be approved subject to conditions.

Consultation:

There are no further consultation processes for Council associated with this report.

Financial Implications:

There are no further financial implications for Council associated with this report.

Policy Implications:

There are no policy implications for Council associated with this report.

Communication / Publications:

The final outcome of this matter will be notified in the newspaper. The objectors will also be notified in writing of the outcome.

 

Report Recommendation:

That the modification application Number 290/2017/A being a Section 4.56 application to modify an approved child care facility to provide additional general purpose rooms and a rooftop outdoor play area on land at 331 Blaxcell Street, South Granville be approved subject to the attached modified conditions.

 

Attachments

1.      Draft Notice of Determination

2.      Architectural Plans - Part 1

3.      Architectural Plans - Part 2

4.      Variation to height of buildings Statement under Clause 4.3

5.      Appendix A

6.      Original Deferred Commencement Consent

7.      Original Architectural Plans  

 


DOCUMENTS
ASSOCIATED WITH
REPORT LPP054/19

Attachment 1

Draft Notice of Determination


Cumberland Local Planning Panel Meeting

 14 August 2019


 


 


DOCUMENTS
ASSOCIATED WITH
REPORT LPP054/19

Attachment 2

Architectural Plans - Part 1


Cumberland Local Planning Panel Meeting

 14 August 2019


 


 


 


 


 


 


 


 


 


DOCUMENTS
ASSOCIATED WITH
REPORT LPP054/19

Attachment 3

Architectural Plans - Part 2


Cumberland Local Planning Panel Meeting

 14 August 2019


DOCUMENTS
ASSOCIATED WITH
REPORT LPP054/19

Attachment 4

Variation to height of buildings Statement under Clause 4.3


Cumberland Local Planning Panel Meeting

 14 August 2019


 


 


 


 


 


 


 


 


 


 


 


 


DOCUMENTS
ASSOCIATED WITH
REPORT LPP054/19

Attachment 5

Appendix A


Cumberland Local Planning Panel Meeting

 14 August 2019


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


DOCUMENTS
ASSOCIATED WITH
REPORT LPP054/19

Attachment 6

Original Deferred Commencement Consent


Cumberland Local Planning Panel Meeting

 14 August 2019


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


DOCUMENTS
ASSOCIATED WITH
REPORT LPP054/19

Attachment 7

Original Architectural Plans


Cumberland Local Planning Panel Meeting

 14 August 2019


 


 


 


 


 


 


 


Cumberland Local Planning Panel Meeting

14 August 2019

 

Item No: LPP055/19

Development Application - 40 - 42A Park Road, Auburn

Responsible Division:                    Environment & Planning

Officer:                                              Executive Manager Development and Building

File Number:                                    DA-51/2019  

 

 

Application lodged

13 March 2019

Applicant

F & A Property Development Pty Ltd

Owner

F & A Property Development Pty Ltd and Just Ahead Pty Ltd

Application No.

DA-51/2019

Description of Land

40 – 42A Park Road, AUBURN  NSW  2144, Lot 4 DP 440764, Lot 1 DP 798616, Lot 30 DP 75014

Proposed Development

Demolition of existing dwellings and construction of a six storey residential flat building comprising 32 units above two levels of basement car parking for 36 vehicles pursuant to State Environmental Planning Policy (Affordable Rental Housing) 2009

Site Area

1536.8m2

Zoning

R4 High Density Residential

Disclosure of political donations and gifts

Nil disclosure

Heritage

Yes – site is located adjacent to 25 Harrow Road, Auburn, a heritage listed property of local significance

Principal Development Standards

Clause 4.3 Height of Buildings

Permissible:       18 metres

Proposed: 19.99 metres

 

Clause 4.4 Floor Space Ratio

Permissible:       1.7:1

Proposed: 1.91:1

Issues

·     Building height exceedance (ALEP 2010)

·     Solar access

·     Submissions

 

Summary:

1.      Development Application No.DA-51/2019 was received on 13 March 2019 for the demolition of existing dwellings and construction of a six storey residential flat building comprising 32 units above two levels of basement car parking for 36 vehicles, pursuant to State Environmental Planning Policy (Affordable Rental Housing) 2009.

2.      The application was publicly notified to occupants and owners of the adjoining properties for a period of fourteen (14) days between 2 April 2019 and 16 April 2019. In response, two (2) submissions were received, including one (1) petition.

3.      The subject site is located adjacent to 25 Harrow Road, Auburn, a heritage item of local significance.

4.      The development is generally compliant with the provisions of the Auburn Development Control Plan 2010.

5.      The development is generally in compliance with the provisions of the Auburn Local Environment Plan, with the exception of a proposed variation to the maximum building height. The variation is as follows:

 

Figure 1 – Auburn LEP 2010 Compliance Table

 

Control

Required

Provided

Variation

4.3 Height of buildings

 

18 metres

Lift overrun        19.99 metres

11%

6.      The application is recommended for deferred commencement approval, subject to the conditions as provided in the attached schedule.

7.      The application is referred to the Panel as the proposal is considered to be sensitive development and contravenes a development standard by more than 10 percent.

Report:

Subject Site And Surrounding Area

The site forms Lot 4 DP 440764, Lot 1 DP 798616 and Lot 30 DP 75014 and is known as 40, 42 and 42A Park Road, Auburn NSW 2144. The site has an area of 1536.8m2 and a frontage to Park Road of 30.82 metres. The site has a gradual fall to the street.

Current improvements on the site comprise a single storey clad and metal roof dwelling and a single storey brick and tile roof dwelling and associated outbuildings. There are several trees scattered across the site. The site is traversed by existing Sydney Water stormwater and sewer pipelines.

Existing development adjoining and surrounding the site include a mix of low to medium density residential development, with the area being in the process of transitioning to higher density land uses. The site is located in proximity to the Auburn Town Centre, to the north and east, refer to Figure 3 below. The Auburn Town Centre is characterised by a mix of commercial and retail land uses, community uses and higher density residential built forms.

The following table identifies existing development immediately adjoining the site.


 

Figure 2 – Adjoining development

ADDRESS

EXISTING DEVELOPMENT

38 Park Road, Auburn

Adjoining to the north (side)

Semi-detached dwelling, built to the southern boundary. This dwelling was formerly attached to the dwelling on 40 Park Road, Auburn. This dwelling was demolished in accordance with a complying development certificate (CDC) approval in response to an Emergency Order issued by Council in relation to structural fire damage (EPA-95/2017). 

44 Park Road, Auburn

Adjoining to the south (side)

Three storey ‘walk-up’ residential flat building.

21 Harrow Road, Auburn

Adjoining to the east (rear)

Single storey brick and tile dwelling currently operating as a pre-school.

 

23 Harrow Road, Auburn

Adjoining to the east (rear)

Single storey brick and tile dwelling with detached secondary dwelling.

 

25 Harrow Road, Auburn

Adjoining to the east (rear)

Single storey brick and tile ‘Victorian’ dwelling listed as a heritage item of local significance.

 

Figure 3 – Aerial view of subject site (Nearmap)

Figure 4 – Locality Plan of subject site, outlined red with adjoining heritage item outlined blue and Auburn Town Centre shaded yellow (Exponare)

IMG_0221

Figure 5 – Street view of subject site, mixed use development at 93-105 Auburn Road, Auburn, within the Town Centre visible in background

 

Description of the Proposed Development

Council is in receipt of a development application lodged on 13 March 2019, seeking approval for the demolition of existing dwellings and construction of a six storey residential flat building comprising 32 units above two levels of basement car parking for 36 vehicles pursuant to State Environmental Planning Policy (Affordable Rental Housing) 2009 at 40-42A Park Road, Auburn.

The development comprises a total of 32 residential units across six (6) levels, with a mix of 2 x one bedroom, 21 x two bedroom and 9 x three bedroom units.

A total of eight (8) units are to be allocated as affordable housing, i.e. G05, 102, 103, 105, 106, 107, 205 and 503. Four (4) units are capable of being converted to adaptable dwellings, i.e. G05, 105, 106 and 208.

The communal open space area is distributed across the ground level and Level 5, with a total communal open space area of 441.24m2 provided. 

There is a bin chute for the disposal of waste generated on each of the upper levels of the development, which feeds into the bin room on the ground level. The bin room also includes an area for bulky waste storage.

A vehicular access driveway off Park Road provides access to the basement carpark which proposes a total of 36 car parking spaces, including four (4) accessible car parking spaces, across two levels. Basement 02 also includes storage areas.

History

On 13 January 2017 a development application was submitted to Council seeking consent for the demolition of existing dwellings, removal of several trees, construction of 2 x double storey attached townhouses and a 7 storey residential flat building containing 27 units over two levels of basement car parking at 42-42A Park Road, Auburn (DA-9/2017).

DA-9/2017 was assessed and a deferral letter issued to the Applicant seeking additional information, including amendments to the design of the development to facilitate compliance with the ALEP 2010 and ADCP 2010 as well as details of the diversion of the Sydney Water stormwater pipe traversing the site. The Applicant was unable to provide the requested information to Council in a timely manner and the application was subsequently withdrawn on 14 November 2017.

The currently vacant 40 Park Road, Auburn was the subject of an Emergency Order issued by Council in relation to structural fire damage of the attached dwelling (EPA-95/2017).  The dwelling on 40 Park Road, Auburn, was subsequently demolished in accordance with a complying development certificate (CDC) approval.


 

Applicants Supporting Statement

The applicant has provided a Statement of Environmental Effects prepared by Morphology Design Associates dated February 2019, received by Council on 13 March 2019, in support of the application.

Contact with Relevant Parties

The assessing officer has undertaken a site inspection of the subject site and surrounding properties and has been in regular contact with the applicant throughout the assessment process.

Internal Referrals

Development Engineer

The development application was referred to Council’s Development Engineer for comment on 27 March 2019 and issues were raised in respect to flooding and stormwater, having particular regard to the proposed deviation of the Sydney Water stormwater pipe traversing the subject site. A meeting was held with Council staff and the Applicants stormwater engineer and an amended Flood Study Report and amended Stormwater Plans were subsequently lodged with Council on 2 July 2019.

Council’s Development Engineer reviewed the amended documentation and advised, on 17 July 2019, that the development could be supported, subject to deferred commencement conditions of consent, relating to flooding and stormwater. The conditions are required to be deferred commencement conditions as they relate to stormwater and drainage arrangements over neighbouring properties for which separate approvals and owners consent is required to be obtained. 

Environment and Health

The development application was referred to Council’s Environment and Health Officer for comment on 27 March 2019, who has advised on 9 April 2019 that the development proposal is satisfactory having regard to contamination and acoustic impacts and therefore can be supported subject to recommended conditions of consent.

Landscape Architect/Officer

The development application was referred to Council’s Tree Management Officer for comment on 27 March 2019, who has advised on 12 April 2019 that the development proposal is satisfactory, subject to the recommendation of a deferred commencement condition to address the retention of trees on the adjoining properties, with a Tree Protection Plan to be submitted to Council. The development proposal therefore can be supported subject to recommended conditions of consent. The conditions are required to be deferred commencement conditions as they relate to tree protection arrangements which may impact on stormwater design and are required to be finalised before the consent becomes operative.


 

Waste Management

The development application was referred to Council’s Waste Management Officer on 5 June 2019 for comment, who raised issues with respect to clarifying the specifications of the garbage chute system proposed and ensuring that there is a separate bulky waste storage area provided for the development.

An amended Waste Management Plan (WMP) and Ground Floor Plan, with a revised layout of the bin room was subsequently submitted to Council on 2 July 2019. Council’s Waste Management Officer reviewed the amended information and advised on 8 July 2019 that the development proposal is satisfactory, subject to the recommendation of a condition of consent to ensure the bulky waste storage area does not obstruct the transfer of general waste and recycling bins to the main collection area.

External Referrals

Ausgrid

Consultation was undertaken with Ausgrid, pursuant to the provisions of Clause 45(2) of the ISEPP, as the development involves works within 5 metres of an exposed overhead electricity power line. The development application was referred to Ausgrid, however, to date, no comments have been received.

Sydney Water

The development application was referred to Sydney Water who advised that, due to the proximity of the proposed development to Sydney Water assets, conditions of development consent relating to the Sydney Water easement, stormwater, building plan approval and a Section 73 Certificate are recommended.

Conditions of consent have been recommended to address the matters raised by Sydney Water.

Planning Comments

The provisions of any Environmental Planning Instruments (EP&A Act s4.15 (1)(a)(i))

State Environmental Planning Policies

The proposed development is affected by the following State Environmental Planning Policies:

(a)     State Environmental Planning Policy No. 55 – Remediation of Land (SEPP 55)

Clause 7 of SEPP 55 requires Council to be satisfied that the site is suitable or can be made suitable to accommodate the proposed development. The matters listed within Clause 7 have been considered in the assessment of the development application.

Figure 6 – SEPP 55 Compliance Table

Matter for Consideration

Yes/No

Does the application involve re-development of the site or a change of land use?

 Yes  No

Is the development going to be used for a sensitive land use (e.g.: residential, educational, recreational, childcare or hospital)?

 Yes  No

Does information available to you indicate that an activity listed below has ever been approved, or occurred at the site?

acid/alkali plant and formulation, agricultural/horticultural activities, airports, asbestos production and disposal, chemicals manufacture and formulation, defence works, drum re-conditioning works, dry cleaning establishments, electrical manufacturing (transformers), electroplating and heat treatment premises, engine works, explosive industry, gas works, iron and steel works, landfill sites, metal treatment, mining and extractive industries, oil production and storage, paint formulation and manufacture, pesticide manufacture and formulation, power stations, railway yards, scrap yards, service stations, sheep and cattle dips, smelting and refining, tanning and associated trades, waste storage and treatment, wood preservation

 Yes  No

Is the site listed on Council’s Contaminated Land database?

 Yes  No

Is the site subject to EPA clean-up order or other EPA restrictions?

 Yes  No

Has the site been the subject of known pollution incidents or illegal dumping?

 Yes  No

Does the site adjoin any contaminated land/previously contaminated land?

 Yes  No

Has the appropriate level of investigation been carried out in respect of contamination matters for Council to be satisfied that the site is suitable to accommodate the proposed development or can be made suitable to accommodate the proposed development?

 Yes  No

A Phase 1 Contamination Assessment report prepared by Ground Technologies Pty Ltd was submitted with the application. The report did not reveal any potential matters of concern with regard to contamination and concludes that the site is suitable for its intended use.

 

Council’s Environmental Health Officer has reviewed the report and determined that the site is suitable to support such a development, given that the report provides that the site is suitable for the development for the proposed use and that no further action or remediation action is required.

 

A condition of consent has been recommended, should any new information come to light during demolition or construction works, which has the potential to alter previous conclusions about site contamination.

(b)     Statement Environmental Planning Policy No. 65 - Design Quality of Residential Apartment Development (SEPP 65)

SEPP 65 applies to the development as the building is 3 storeys or more, and contains more than 4 dwellings. A design statement addressing the design quality principles prescribed by SEPP 65 was prepared by the project architect. Integral to SEPP 65 is the Apartment Design Guide (ADG), which sets benchmarks for the appearance, acceptable impacts and residential amenity of the development.

The proposal is generally compliant with the provisions of SEPP 65 and the ADG, with the exception of building separation distances. This variation is discussed below:

The ADG relevantly provides:

Design Criteria

Separation between windows and balconies is provided to ensure visual privacy is achieved. Minimum required separation distances from buildings to the side and rear boundaries are as follows:

Figure 7: Extract of ADG

The building is six (6) storeys in height and maintains the following separation distances:

Figure 8: ADG Non-compliance Table

Building Elevation

Level

Separation Distance

Complies

South (side)

Ground

01

02

03

04

05

2.963m 6m

3m – 7m

3m – 7m

3m – 7m

4.5m – 9.09m

4.5m – 9.09m

No

East (rear)

Ground

01

02

03

04

05

6m

6m

6m

6m

9m

9m

Yes

North (side)

Ground

01

02

03

04

05

6m

6m

6m

6m

9m

9m

Yes

The variations to the building separation distances along the southern elevation are considered acceptable, for the following reasons:

·        The ground floor building elevation, with a setback of 2.963m to the southern boundary, comprises the bedroom and bathroom of Unit G05. The bedroom does not have any openings and the bathroom along this elevation, proposes a highlight window. There is a sliding door to the second bedroom of Unit G05, along the southern elevation. An increased setback of 4.246m has been applied to this elevation of the building. It is also noted that the bin room maintains a setback of 6m to the southern boundary. 

·        The southern building elevation of Levels 1 to 3, with a setback distance of 3m, does not have any openings to the habitable rooms. There is a bathroom window, however this window comprises a highlight window configuration. Where there is a window to the habitable rooms along this elevation, a minimum building setback of 6m has been applied. Where there is a balcony along this elevation a setback distance of 7m has been applied to the sliding door and a setback of 3m applied to the edge of the balcony. Privacy louvres have been proposed to the balcony to mitigate any overlooking impacts. 

·        The southern building elevation of Levels 4 and 5, which maintain a minimum 4.5m setback, comprises habitable rooms, with no openings. There are balconies to bedrooms along this elevation, with a side setback of 4.5m to the edge of the balcony. Privacy louvres have been proposed to mitigate any impacts on the adjoining property to the south. The sliding doors accessing these balconies are on the western (front) elevation of the building. Where there are windows to the study, kitchen and dining rooms, a minimum building setback of 5.8m has been applied. This is considered a minor variation to the minimum 6m requirement. It is noted that the splayed configuration of the bedroom walls of Units 404 and 502 result in an encroachment of 1m into the 5.8m setback. Due to the splay of the wall, the windows face south-west and maintain a minimum 8.5m setback from the southern boundary. Where windows are proposed to the bedrooms of Unit 403 and 503, an increased setback of 9.09m has been applied.

A comprehensive assessment against SEPP 65 and the ADG is contained in Appendix A.

(c)     State Environmental Planning Policy (Infrastructure) 2007 (ISEPP)

The provisions of the ISEPP 2007 have been considered in the assessment of the development application.

Clause 45 - Development likely to affect an electricity transmission or distribution network

The subject development occurs within 5 metres of an overhead electricity power line. As such, the Consent Authority is required to give written notice to an electricity supply authority.

The application was referred to Ausgrid on 1 April 2019 to seek concurrence in accordance with Clause 45. No response has been received to date and concurrence has been assumed.

Clause 85 – Development adjacent to railway corridors

The application is not subject to clause 85 of the ISEPP, because the subject site is not in or adjacent to a railway corridor.

Clause 86 – Excavation in, above, below or adjacent to rail corridors

The application is not subject to clause 86 of the ISEPP as the proposed redevelopment of the site does not involve excavation to a depth of at least 2m below ground level (existing), on land within, below or above a rail corridor, or within 25m (measured horizontally) of a rail corridor.

Clause 87 – Impact of rail noise or vibration on non-rail development

The application is not subject to clause 87 of the ISEPP as the site is in or adjacent to a rail corridor or is not likely to be adversely affected by rail noise or vibration.

Clause 101 – Frontage to classified road

The portion of Park Road that the site maintains a frontage to is not a classified road. In the January 2010 Gazette No. 11, the section of Park Road between the intersection of Park Road and South Parade and the intersection of Park Road and Vaughan Street was reclassified from a regional road to a local road.

Clause 101 is therefore not applicable to the development.

Clause 102 – Impact of road noise or vibration on non-road development

The application is not subject to clause 102 of the ISEPP as the annual average daily traffic volume is not greater than 40,000 vehicles.

Clause 104 – Traffic generation developments

The application is not subject to clause 104 as the proposal does not trigger the requirements for traffic generating developments listed in Schedule 3 of the ISEPP.

(d)     State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP)

BASIX Certificate 972830M issued on 14 February 2019 prepared by Sustainable Thermal Solutions has been submitted to Council and is considered to be satisfactory.

(e)     State Environmental Planning Policy (Affordable Rental Housing) 2009 (ARH SEPP)

The proposal is subject to the provisions of Part 2 (New affordable rental housing) Division 1 (In-fill affordable housing) of the ARH SEPP.

Following is a discussion of the relevant Clauses, a detailed assessment is provided at Appendix B.

13 Floor space ratios

(1)     This clause applies to development to which this Division applies if the percentage of the gross floor area of the development that is to be used for the purposes of affordable housing is at least 20 per cent.

Based on the total proposed GFA of 2,936.59m2, a minimum GFA of 587.32m2 is required to be used for the purpose of affordable housing to meet the minimum 20 per cent requirement of Clause 13.

The development proposes to allocate an area of 619.67m2 of the total building GFA to affordable housing, i.e. Units G05, 102, 103, 105, 106, 107, 205 and 503. This equates to a total of 21.1 per cent of the total building GFA.

A maximum floor space ration (FSR) of 1.7:1 is applicable to the subject site, pursuant to the provisions of ALEP 2010. This equates to a maximum gross floor area (GFA) of 2,612.56m2.

As the existing maximum FSR is less than 2.5:1 and the percentage of GFA of the development that is used for affordable housing is less than 50 per cent, the following formula applies:

Bonus = % of GFA used for ARH / 100

% of GFA used for ARH = 21.1% / 100

Bonus = 0.211:1

Applying the ARH Bonus (represents a maximum GFA of 2,936.82m2)

Max. GFA permitted:

= 2,936.82m2 (1.911:1)

Provided GFA = 2,936.59m2

FSR = 1.91:1

The proposal is compliant with the maximum FSR, subject to the ARH SEPP bonus.

It should be noted that the proposal fully complies with the key planning controls contained within the ARH SEPP including site area, landscaped area, parking, accommodation size and prescribed standards for in-fill affordable housing.


 

16A Character of local area

A consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area. The SEPP (ARH) does not contain any guidance for assessing whether a proposal is compatible with the character of the local area. However, a planning principle for assessing compatibility in the urban environment was established by Senior Commissioner Roseth of the Land and Environment Court in the judgement for Project Venture Developments Pty Ltd v Pittwater Council [2005] NSWLEC 191. This involves asking the following two questions:

·        Are the proposal’s physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites.

·        Is the proposal’s appearance in harmony with the buildings around it and the character of the street?

A merit assessment of the character of the local area should consider the following 3 steps:

·        Step 1 – Identify the ‘local area’.

·        Step 2 – Determine the character of the ‘local area’.

·        Step 3 – Determine whether the design of the proposed development is compatible with the character of the ‘local area’.

An assessment against each step is provided below:

Step 1 – Identify the local area.

This assessment identifies the local area as primarily the visual catchment of the site (hatched in red) as viewed from within the site and directly adjacent to the site on the street which is defined by the blue outline in Figure 9 and the white line in Figure 10.

The local area

Figure 9 – Local Area catchment as identified on Aerial Map (Exponare)

Figure 10 – Local Area catchment as identified on Zoning Map (Exponare)

Step 2 – Determine the character (present and future) of the local area.

The zoning of the broader locality and immediate area comprises R4 High Density Residential, B4 Mixed Use, R2 Low Density Residential, and R3 Medium Density Residential under the Auburn Local Environmental Plan 2010 (ALEP 2010).

Present Character of the area

The character of the local area comprises the visual catchment of regular shaped allotments viewed from and surrounding the subject site, which includes:

1.      Existing low to medium density built forms on the western side of Park Road and adjoining the site to the north, east and south, comprising standard dwelling houses and medium multi dwelling and walk-up residential flat building development. 

2.      Recently constructed residential flat building to the north of the site at 13-19 Mary Street, Auburn.

3.      Recently constructed mixed use development to the rear of the site to the east at 93 Harrow Road, Auburn.

4.      Established residential flat building at the corner of Beatrice Street and Park Road at 19-25 Beatrice Street, Auburn.

 

IMG_0229

 

Figure 11 – Existing low to medium density development on the western side of Park Road and adjoining site to the north, east and south, existing RFB at the corner of Beatrice Street and Park Road in the distance

IMG_0220

Figure 12 – View of the subject site with recently constructed RFB in the distance to the east

IMG_0224

Figure 13 – Looking north along Park Road with recently constructed RFB at 13-19 Mary Street visible in the distance

Future character of the area

Given the proximity of the subject site to the Auburn Town Centre and Auburn Railway Station, it is considered that the height, bulk and scale of the proposed development is not out of character with the recently approved, commenced and completed newer residential flat buildings being constructed within the locality. The proposed scale and design of the development is considered to be consistent with the desired future character of the locality.

The R4 land use zoning of the land immediately surrounding the site and the B4 land use zone to north envisage a higher density residential and commercial built form. The R2 low density residential land to the west of the site presents a transition from the higher density built forms to the north and east as you move further west into the established residential areas of the suburb of Auburn, away from the Town Centre.

Step 3 - Determine if the development is compatible with the character of the local area.

In accordance with the Land and Environment Court’s ‘Planning Principle’ and case law compatibility is best defined as ‘capable of existing together in harmony’. In order to test compatibility two questions are to be considered. These questions, as well as a response to each, are provided below:

·        Are the proposal’s physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites.

The building height, FSR, building setbacks and landscaping of the proposed development are designed to maintain the harmony within the streetscape, whilst contributing to the site context and constraints. The proposal being a permissible land use, meets the FSR requirement (in accordance with ARH SEPP) and contributes to the provision of affordable housing within the close proximity of public transport hub and Auburn Town Centre. Appropriate setbacks and privacy treatments are provided to minimise any adverse impacts to the adjoining properties. The fifth storey does not comply with the requirement for an increased front setback in ADCP 2010, however, the proposed development is appropriately articulated to complement the existing and future streetscape within the local area.

·        Is the proposal’s appearance in harmony with the buildings around it and the character of the street?

To be compatible, a development should contain, or at least respond to the key aesthetic elements that make up the character of the surrounding area. The size of the basement maximises landscaping and deep soil zones on site. The front setbacks are generous and consistent with the existing streetscape. The proposal is considered to maintain an appropriate residential character which is consistent with the streetscape. As indicated, the local area is in the process of transitioning to a high density residential built form, as such, the proposed development is not considered to be inconsistent with the existing streetscape character of the immediate area surrounding the subject site.

In conclusion, the proposal will maintain the harmony within the general streetscape, and suitably fits in the local character of the locality.

Regional Environmental Plans

The proposed development is affected by the following Regional Environmental Plans:

(a)     Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (SREP 2005)

The subject site is identified as being located within the area affected by the Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005. The proposed development raises no issues as no impact on the catchment is envisaged.

(Note: - the subject site is not identified in the relevant map as ‘land within the ‘Foreshores and Waterways Area’ or ‘Wetland Protection zone’, is not a ‘Strategic Foreshore Site’ and does not contain any heritage items. Hence the majority of the SREP is not directly relevant to the proposed development).

Local Environmental Plans

Auburn Local Environmental Plan 2010 (ALEP 2010)

The provisions of the ALEP 2010 are applicable to the development proposal. It is noted that the development generally achieves compliance with the key statutory requirements of the ALEP 2010 and the objectives of the R4 High Density Residential land use zone.

(a)     Permissibility:-

The proposed development is defined as a residential flat building and is permissible in the R4 High Density Residential land use zone, with consent.

residential flat building means a building containing 3 or more dwellings, but does not include an attached dwelling or multi dwelling housing.

The relevant matters to be considered under ALEP 2010 and the applicable clauses for the proposed development are summarised below. A comprehensive LEP assessment is contained in Appendix C.

Figure 14 – Auburn LEP 2010 Compliance Table

DEVELOPMENT STANDARD

COMPLIANCE

DISCUSSION

4.3 Height of Buildings

Maximum 18m

N

The maximum building height exceeds 18 metres at the following points:

 

Roof slab  19.38 metres

 

Lift overrun        19.99 metres

 

Variation to this development standard is sought as part of a Clause 4.6 variation request, refer to following discussion under Clause 4.6.

4.4 Floor Space Ratio (FSR)

Maximum 1.7:1

Y

The development provides a FSR of 1.91:1. This includes the bonus pursuant to the provisions of Clause 13 (Floor space ratios) of the ARH SEPP.

5.6 Architectural roof features

Y

The building design incorporates an architectural roof feature which comprises a decorative element on the uppermost portion of a building. This projection is not an advertising structure, and does not include floor space area and is not reasonably capable of modification to include floor space area. The roof feature does not cause overshadowing impacts. Having regard to the above, a variation to the maximum building height, to facilitate the architectural roof feature is considered acceptable.

 

5.10 Heritage conservation

Y

The site is not identified as a heritage item and is not located within a heritage conservation area. The site adjoins a heritage item of local significance to the east at 25 Harrow Road, Auburn. Item I22 comprises a ‘Victorian Dwelling’ of local heritage significance. The site is also in the vicinity of the following items of local significance:

 

·    I2 at 16 harrow Road, Auburn ‘Auburn Baptist Church’

·    I10 at 8 Mary Street, Auburn ‘’Dwelling’

·    I17 at 24 Mary Street, Auburn ‘Lea’s Temperance Hall (former)’

 

The application was accompanied by a Heritage Impact Statement (HIS) prepared by Edwards Heritage Consultants dated 21 February 2019.

 

Whilst the site is not identified as a heritage item, the Consent Authority is required to consider the provisions of Clause 5.10(4) to consider the effect of the proposed development on the heritage significance of the item or area concerned.

 

The HIS relevantly concludes that demolition of the existing dwellings at Nos. 42 and 42A Park Road is supported as they are considered of little architectural interest and value and they have a silent relationship to the adjoining heritage item at 25 Harrow Road as they do not significantly feature in the visual curtilage to the heritage item.

 

Subject to recommendations, the proposal is considered to have an entirely acceptable heritage impact in terms of its relationship to the heritage item at 25 Harrow Road and is recommended to Council for approval.

 

Conditions of consent have been recommended to ensure that the recommendations of the HIS are implemented as they relate to photographic archival recording and structural integrity. 

6.3 Flood planning

Site is within a flood planning area affected by the flood planning level of a 1:100 ARI (average recurrent interval) flood event plus 0.5 metre freeboard

Y

The development has been designed to have regard to the 1 in 100-yr ARI flood level plus 0.5 metre freeboard, providing a habitable floor level of 26.5 metres.

(b)     Clause 4.6 – Variation to Building Height

Clause 4.6 allows the consent authority to vary development standards in certain circumstances and provides an appropriate degree of flexibility to achieve better design outcomes. The consent authority may grant the exception as the Secretary’s concurrence can be assumed where clause 4.6 is adopted as per the Department of Planning Circular PS 18-003, dated 21 February 2018.

The applicant has submitted a written request to vary the development standards for maximum building height. Based on various case laws established by the Land and Environment Court of NSW such as Four2five P/L v Ashfield Council [2015] NSWLEC 9, Randwick City Council v Micaul Holdings P/L [2016] NSW LEC7 and Zhang and anor v Council of the City of Ryde [2016] NSWLEC 1179, a 3 part assessment framework for a variation request proposed under clause 4.6 has been considered and an assessment of the proposed variance, following the 3 part test is discussed in detail below.

The three (3) preconditions which must be satisfied before the application can proceed are as follows:

1.      Is the proposed development consistent with the objectives of the zone?

Applicant’s justification:

The development is consistent with the objectives of the R4 High Density Residential land use as the proposed residential flat building will increase the local housing supply to meet the additional housing needs in the growing community in the Auburn area. The development has been designed with a variety of dwelling types, including 1-bedroom, 2-bedroom and 3-bedroom dwellings and accessible dwellings to meet resident needs. The development is located within 800 metres of Auburn Railway Station and accessible to public transport.

Planner’s comment:

The proposed development is consistent with the R4 High Density Residential land use zone objectives as the residential flat building contributes to the provision of affordable housing within an accessible area; given the site’s proximity to public transport, including the Auburn Railway Station. The development provides a range of dwelling types, including a mix of one, two and three bedroom to meet the varying needs of future residents. In an area that is currently in the process of transitioning to a higher density built form, the development is of a design and scale that contributes positively to the future intended streetscape, whilst also not offending the existing established streetscape. 

2.      Is the proposed development consistent with the objectives of the development standard which is not met?

Applicant’s justification:

Despite the numerical non-compliance with the building height standard, the six-storey residential flat building is within the permitted floor space ratio (FSR) and the building is compatible with the future character of the area.

Planner’s comment:

The objectives of the building height standard are to enable appropriate development density to be achieved and to ensure that the height of the building is compatible with the character of the locality. The proposal is compliant with the maximum FSR; inclusive of the bonus provision under the ARH SEPP. The increased height does not achieve any additional level for residential use, and comprises portions of the roof of the building and the top of the lift core.

The subject site is also identified to be impacted by the 100-yr ARI flood level across the site, and as such the proposal is required to achieve minimum FFLs above the 100-yr ARI flood level plus 500mm freeboard. In this regard, the building is raised higher in response to the conditions of the site and to achieve the required FFLs, which has contributed to the non-compliance with the maximum building height standard.

The departure sought is considered to be modest and does not unreasonably impact on adjoining properties. The additional height does not result in the appearance of bulk when viewed from the existing streetscape and would not impinge on the evolving streetscape that is anticipated for the immediate area. Given that the proposed development responds to the site without compromising relationships with adjoining development, and does not unduly compromise other relevant controls, the proposal is considered to be consistent with the objectives of height requirements and development within the R4 land use zone.

3.      a) Is compliance with the development standard unreasonable or unnecessary in the circumstances of the case?

Applicant’s justification:

The subject site is located within the flood plan area. According to the Flood Study prepared by SGCE, the subject site is flood affected with 100-yr flood level occurring at RL 26.00m at the north-western corner of the site. The Auburn Council’s DCP requires the flood planning level to be 500mm above the calculated 100-yr ARI flood levels and 0.15m basement entry. The proposed development has adopted the flood planning levels and set the Ground Floor level at RL26.50m, as well as the basement crest at RL26.15m.

The proposed roof element is designed for decorative purpose and does not contain any additional floor space for the GFA. The height exceedance is a combined outcome of both flood affection and architectural roof feature design. The roof element is not an advertising structure and is not capable to be transformed into future additional floor space. The proposal is consistent with the objectives of Clause 5.6 Architectural roof feature.

The proposed residential flat building is under SEPP Affordable Rental Housing 2009. To accommodate the additional density in the development it is better to place the extra density higher than compromising the side setbacks.

In addition, the applicable 18m height limit would anticipate six-storey development to occur. The proposed residential flat building has a consistent floor to floor height of 3m among the proposed six storeys. The proposed development has provided a rationalised level for each storey.

Planner’s comment:

Given the flooding affectation of the site and the requirement for a minimum habitable floor level of 26.5 metres, strict compliance with the maximum building height on this site is considered unreasonable. Further, the architectural roof feature which exceeds the maximum building height, contributes to reducing the bulk and scale of the development and adds articulation to the building, without creating additional floor area.

b) Are there sufficient environmental planning grounds to justify contravening the development standard and therefore is the applicant’s written justification well founded?

Applicant’s justification:

The proposed maximum variation to the development standard is 1.99m (11% of the 18 metre height limit). With the variation of height, the proposed development is capable of providing a high level of amenity in terms of sufficient setbacks, good direct sunlight and contributing to the streetscape as well as consistency with the relevant objectives of both the height standard and the R4 High Density Residential zone. Therefore, the exception sought is in line with the public interest.

Planner’s comment:

Having regard to the justification provided for the contravention of the development standard, the variation to the maximum building height is supported, for the reasons discussed above. 

Conclusion:

Council is satisfied that the applicant’s written request has adequately addressed the matters required to be demonstrated by clause 4.6 subclause (3). Council is further satisfied that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out.

It is the view of Council officers that justification provided is satisfactory and, having considered the application on its merit, the exception to the maximum building height development standard is considered acceptable in this instance.

The provisions of any proposed instrument that is or has been the subject (EP&A Act s4.15 (1)(a)(ii))

(a)     Draft State Environmental Planning Policy (Environment)

The draft SEPP relates to the protection and management of our natural environment with the aim of simplifying the planning rules for a number of water catchments, waterways, urban bushland, and Willandra Lakes World Heritage Property. The changes proposed include consolidating the following seven existing SEPPs:

·        State Environmental Planning Policy No. 19 – Bushland in Urban Areas

·        State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011

·        State Environmental Planning Policy No. 50 – Canal Estate Development

·        Greater Metropolitan Regional Environmental Plan No. 2 – Georges River Catchment

·        Sydney Regional Environmental Plan No. 20 – Hawkesbury-Nepean River (No.2-1997)

·        Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005

·        Willandra Lakes Regional Environmental Plan No. 1 – World Heritage Property.

The draft policy will repeal the above existing SEPPs and certain provisions will be transferred directly to the new SEPP, amended and transferred, or repealed due to overlaps with other areas of the NSW planning system.

Changes are also proposed to the Standard Instrument – Principal Local Environmental Plan. Some provisions of the existing policies will be transferred to new Section 117 Local Planning Directions where appropriate.

The provisions of any Development Control Plans (EP&A Act s4.15 (1)(a)(iii))

The Auburn DCP 2010 provides guidance for the design and operation of development to achieve the aims and objectives of the Auburn LEP 2010.

A comprehensive assessment and compliance table is contained in Appendix D.

The following table highlights non-compliances with the DCP, which relate primarily to front setback, rear setback, building depth and number of car parking spaces. The variations sought are considered satisfactory on merit in this instance:

Figure 15 – Auburn DCP 2010 Variations Table

Clause

Control

Proposed

Complies

2.4.1 Front setback

 

D6 In all residential zones, levels above 4 storeys are to be setback for mid-block sites.

 

Level 5 maintains the same front building setback of the levels below. Variations in the façade treatment of this level, coupled with the lack of encroachment of the balconies into the 6m building setback result in the development presenting an acceptable bulk and scale when viewed from Park Road. The proposed variation is supported. 

No – but justified

2.4.3 Rear setback

D1 Rear setbacks shall be a minimum of 10m from the property boundary.

 

The rear setback of the development ranges from between 6m to 9m. Having regard to the impact of the development on adjoining properties to the rear, this variation is considered acceptable. Privacy screens are provided to the balconies to the rear.

No – but justified

2.5 Building depth

 

 

D1 The maximum depth of a residential flat building shall be 24m (inclusive of balconies and building articulation but excluding architectural features).

 

The building maintains a maximum building depth of 38m. Given that the development achieves adequate setbacks and FSR, a variation to this control is supported.

 

No – but justified

4.4.1 Number of parking spaces

 

 

D1 Car parking for residential flat buildings shall comply with the requirements:

 

1 bedroom dwelling   1.0 parking space

2 bedroom dwelling   1.0 parking space

3 bedroom dwelling   2.0 parking space

4 bedroom dwelling   2.0 parking space

Visitor spaces             0.2 parking space

 

Note: Resident and visitor car parking calculations are to be rounded up separately.

 

The DCP rate for parking would ordinarily require a total of 41 spaces inclusive of visitor parking.

The development is however, made under the ARH SEPP which prescribes a lesser parking rate and requires a total of 36 spaces.

 

 

 

N/A – car parking is compliant with provisions of ARH SEPP which requires a total of 36 resident spaces. There is no requirement for visitor parking under the ARH SEPP. Provided a minimum 36 car parking spaces are provided, the development cannot be refused pursuant to the provisions of Clause 14(2)(a)(ii) of ARH SEPP.

These non-compliance are considered acceptable as the proposal will protect the amenity of adjoining sites, permit adequate solar access and minimise overshadowing, and will provide for a landscaped residential setting including generous communal and private open space proposed as part of this development.

The provisions of any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4 (EP&A Act s4.15(1)(a)(iiia))

There is no draft planning agreement associated with the subject Development Application.

The provisions of the Regulations (EP&A Act s4.15 (1)(a)(iv))

The proposed development raises no concerns as to the relevant matters arising from the Environmental Planning and Assessment Regulations 2000 (EP&A Reg).

The Likely Environmental, Social or Economic Impacts (EP&A Act s4.15 (1)(b))

It is considered that the proposed development will have no significant adverse environmental, social or economic impacts in the locality.

The suitability of the site for the development (EP&A Act s4.15 (1)(c))

The subject site and locality is not known to be affected by any natural hazards or other site constraints likely to have a significant adverse impact on the proposed development. Accordingly, it is considered that the development is suitable in the context of the site and surrounding locality.

Submissions made in accordance with the Act or Regulation (EP&A Act s4.15 (1)(d))

Advertised (newspaper)              Mail             Sign                    Not Required

In accordance with Council’s Notification requirements contained within the Auburn DCP 2010, the proposal was publicly notified for a period of fourteen (14) days between 2 April 2019 and 16 April 2019. The notification generated two (2) submissions, including one (1) petition, in respect of the proposal with no submissions disclosing a political donation or gift. A copy of the submissions is provided at Attachment 4. The issues raised in the public submissions are summarised and commented on as follows:

1.      Issue: Overlooking of development into adjoining properties.

Planner’s comment: Where balconies are proposed on the northern and southern sides of the building, a minimum setback of 6 metres is proposed. In addition, these balconies provide privacy louvres, to minimise the potential for overlooking impacts.

2.      Issue: Overshadowing impacts of the development on adjoining properties.

Planner’s comment: It is acknowledged that the development will have an overshadowing impact on the existing adjoining residential flat building to the south, including the balconies along the northern elevation of the building. The balconies maintain a setback in the order of 7 metres from the northern property boundary. The proposed development maintains a southern boundary side setback which varies from 2.963 metres at the ground level to 3 metres to 9.09 metres at the upper levels. Having regard to the existing and proposed building separation distances of the adjoining site and the subject site and the future built form envisaged for the area, i.e. high density residential development, the impacts are considered acceptable.

3.      Issue: Negative impacts on the amenity of adjoining properties through noise, overlooking, smell, loss of privacy, dust and late night activities.

Planner’s comment: Refer to earlier discussion regarding overlooking. With respect to amenity impacts, including noise, odour and dust, conditions of consent have been recommended to ensure that the development does not give rise to adverse environmental impacts during the demolition, construction and on-going use stages of the development.

4.      Issue: Traffic impacts as a result of traffic generation of the proposed development.

Planner’s comment: A Traffic Impact Assessment prepared by PDC Consultants, dated: 18 February 2019 was submitted and reviewed by Council’s Development Engineer. The development is supported having regard to traffic impacts. 

5.      Issue: Excessive building height – 6 storey development. Would constitute an unbalancing of the already established buildings nearby and be out of proportion in both height and appearance.  

Planner’s comment: The development comprises 6 storeys, with a maximum building height of 19.99 metres, at uppermost part of the lift core. The variation to the maximum 18 metre building height has been justified by the Applicant through a Clause 4.6 variation request pursuant to the provisions of the ALEP 2010. The height and scale of the building is consistent with the future desired built form for the area, having regard to the R4 High Density Residential land use zone of the site and surrounding land.

6.      Issue: Generation of additional foot and vehicle traffic created by way of unauthorised persons and vehicles entering adjoining properties and disturbing the residents and neighbouring homes.   

Planner’s comment: Whilst the development will result in increased pedestrian and vehicle movements, the boundaries of the development are well defined, as is the building’s pedestrian and vehicular access entrances.

7.      Issue: The development provides a lack of open space at ground level for environmental amenities, such as landscaping. This will have an adverse impact on the streetscape.    

Planner’s comment: The development provides a total landscaped area of 596.31sqm at the ground level, equating to 42.4% of the site area. Further, the Landscape Plan for the development provides an area for mass planting at the site’s Park Road frontage and landscaping throughout the site, to enhance the proposed communal open space area to be utilised by residents of the development and to enhance the aesthetic of the development when viewed from Park Road.

8.      Issue: There is no need for this type of development, it is of no economic, environmental or social benefit.     

Planner’s comment: The proposed development is contributing to the provision of affordable rental housing within an accessible location. The built form is consistent with the R4 High Density Residential land use zone. The development provides positive social, economic and environmental benefits to the immediate area and the wider community.

9.      Issue: Community facilities and services are currently inadequate to meet the needs of the existing and future residents.      

Planner’s comment: The development generates the requirement for the payment of a Section 7.11 contribution to Council to be put towards community facilities, the public domain works and accessibility and traffic. This has been imposed as a recommended condition of consent.

10.    Issue: The development has the potential to generate the dumping of household rubbish on nature strips, footpaths and road drainage areas.       

Planner’s comment: The development is serviced by a Bin Room at ground level, which also provides a bulky waste storage area. Conditions of consent have been recommended to ensure that waste management is undertaken in appropriate manner and that waste is contained to the Bin Room, subject to collection.

11.    Issue: Even though this land is zoned for high density affordable rental housing, using the land for this type of dwelling will conflict with the already established single storey residences nearby and compatibility of nearby land uses.

Planner’s comment: The area is currently in process of transitioning to a higher density residential built form and the proposed development is consistent with this vision. Development for the purposes of a residential flat building is permitted with consent in the R4 High Density Residential land use zone and the development has been deemed appropriate for the site, having regard to the provisions of Section 4.15 of the EP&A Act.

12.    Issue: There is concern that the excavation of the proposed basement car parking area will further add irreversible long-term damage to adjoining properties, posing an unacceptable risk to safety of residents.

Planner’s comment: A condition of consent has been recommended requiring the preparation of a Dilapidation Report prior to the commencement of the excavation works for the basement.

The public interest (EP&A Act s4.15(1)(e))

In view of the foregoing analysis it is considered that the development, if carried out subject to the conditions set out in the recommendation below, will have no significant adverse impacts on the public interest.

Section 7.11 (Formerly S94) Contribution Towards Provision or Improvement of Amenities or Services

This part of the Act relates to the collection of monetary contributions from applicants for use in developing key local infrastructure.

Comments:

The development requires the payment of contributions in accordance with Council’s Section 94 Contributions Plan.

As at 19 July 2019, the fee payable is $188,657.96. This figure is subject to indexation as per the relevant plan. The draft determination attached includes a condition requiring payment of the contribution prior to issue of a Construction Certificate.

Disclosure of Political Donations And Gifts

The applicant and notification process did not result in any disclosure of Political Donations and Gifts.

Conclusion:

The development application has been assessed in accordance with the relevant requirements of the Environmental Planning and Assessment Act 1979, ARH SEPP, ISEPP, BASIX SEPP, SEPP 55, SEPP 65, ALEP 2010 and ADCP 2010, and is considered to be satisfactory for approval subject to conditions.

The proposed development is appropriately located within the R4 High Density Residential land use zone under the relevant provisions of the ALEP 2010, however a variation in relation to the maximum building height under the ALEP 2010 are sought.

Having regard to the assessment of the proposal from a merit perspective, Council may be satisfied that the development has been responsibly designed and provides for acceptable levels of amenity for future residents. It is considered that the proposal successfully minimises adverse impacts on the amenity of neighbouring properties. Hence the development, irrespective of the departures noted above, is consistent with the intentions of Council’s planning controls and represents a form of development contemplated by the relevant statutory and non-statutory controls applying to the land.

For these reasons, it is considered that the proposal is satisfactory having regard to the matters of consideration under Section 4.15 of the Environmental Planning and Assessment Act 1979, and the development may be approved subject to conditions.

Consultation:

There are no further consultation processes for Council associated with this report.

Financial Implications:

There are no further financial implications for Council associated with this report.

Policy Implications:

There are no policy implications for Council associated with this report.

Communication / Publications:

The final outcome of this matter will be notified in the newspaper. The objectors will also be notified in writing of the outcome.

 

Report Recommendation:

1.      That Development Application No. DA-51/2019 for the demolition of existing dwellings and construction of a six storey residential flat building comprising 32 units above two levels of basement car parking for 36 vehicles, pursuant to State Environmental Planning Policy (Affordable Rental Housing) 2009 on land at 40-42A Park Road, AUBURN NSW 2144 be granted deferred commencement approval, subject to recommended conditions of consent at Attachment 1.

2.      Persons whom have lodged a submission in respect to the application be notified of the determination of the application.

 

Attachments

1.      Draft Notice of Determination

2.      Architectural Internal and Landscape Plans

3.      Architectural External and Shadow Plans

4.      Stormwater Plans

5.      Submissions Received

6.      Clause 4.6 Variation Request

7.      ADG Compliance Table

8.      ARH SEPP Compliance Table

9.      ALEP 2010 Compliance Table

10.    ADCP 2010 Compliance Table  

 


DOCUMENTS
ASSOCIATED WITH
REPORT LPP055/19

Attachment 1

Draft Notice of Determination


Cumberland Local Planning Panel Meeting

 14 August 2019


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


DOCUMENTS
ASSOCIATED WITH
REPORT LPP055/19

Attachment 2

Architectural Internal and Landscape Plans


Cumberland Local Planning Panel Meeting

 14 August 2019


 


 


 


 


 


 


 


 


 


 


 


 


DOCUMENTS
ASSOCIATED WITH
REPORT LPP055/19

Attachment 3

Architectural External and Shadow Plans


Cumberland Local Planning Panel Meeting

 14 August 2019


 


 


 


 


 


 


 


 


DOCUMENTS
ASSOCIATED WITH
REPORT LPP055/19

Attachment 4

Stormwater Plans


Cumberland Local Planning Panel Meeting

 14 August 2019


 


 


 


 


 


DOCUMENTS
ASSOCIATED WITH
REPORT LPP055/19

Attachment 5

Submissions Received


Cumberland Local Planning Panel Meeting

 14 August 2019


 


 


 


 


 


 


 


DOCUMENTS
ASSOCIATED WITH
REPORT LPP055/19

Attachment 6

Clause 4.6 Variation Request


Cumberland Local Planning Panel Meeting

 14 August 2019


 


 


 


 


 


 


 


DOCUMENTS
ASSOCIATED WITH
REPORT LPP055/19

Attachment 7

ADG Compliance Table


Cumberland Local Planning Panel Meeting

 14 August 2019


 


 


 


 


 


 


 


DOCUMENTS
ASSOCIATED WITH
REPORT LPP055/19

Attachment 8

ARH SEPP Compliance Table


Cumberland Local Planning Panel Meeting

 14 August 2019


 


 


DOCUMENTS
ASSOCIATED WITH
REPORT LPP055/19

Attachment 9

ALEP 2010 Compliance Table


Cumberland Local Planning Panel Meeting

 14 August 2019


 


 


 


DOCUMENTS
ASSOCIATED WITH
REPORT LPP055/19

Attachment 10

ADCP 2010 Compliance Table


Cumberland Local Planning Panel Meeting

 14 August 2019


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


Cumberland Local Planning Panel Meeting

14 August 2019

 

Item No: LPP056/19

Development Application - 96 Chiswick Road, Auburn

Responsible Division:                    Environment & Planning

Officer:                                              Executive Manager Development and Building

File Number:                                    DA-122/2019  

 

 

Application lodged

16-April-2019

Applicant

Mr G Blackwell

Owner

Cumberland Council

Application No.

DA-122/2019

Description of Land

96 Chiswick Road, Auburn NSW  2144 (Lot 2 in DP 235351)

Proposed Development

Demolition of a glasshouse, part of a perimeter wall, a timber wall, turnstiles and a pond and rock edging at the Auburn Botanic Gardens

Site Area

13,720sqm

Zoning

RE1 – Public Recreation

Disclosure of political donations and gifts

Nil disclosure

Heritage

Yes – The structures to be demolished are located within the local heritage item identified as ‘Auburn Botanic Gardens’ (Item ‘I3’) in Schedule 5 of Auburn LEP 2010

Principal Development Standards

Nil

Issues

Heritage impact of the development

Summary:

1.      Development Application No.122/2019 was received on 16-April-2019 for the ‘Demolition of a glasshouse, part of a perimeter wall, a timber wall, turnstiles and a pond and rock edging at the Auburn Botanic Gardens’.

2.      The application was publicly notified to occupants and owners of the adjoining properties for a period of fourteen (14) days between 28 May 2019 and 11 June 2019. In response, no submissions where received.

3.      The subject site is located within the Auburn Botanic Gardens which is listed as a heritage item in the Auburn Environmental Plan 2010 (Item no. I3). The heritage significance of the items to be demolished has been assessed with regard to the heritage provisions of Council’s LEP, the NSW Heritage significance criteria and advice provided by Paul Davies Heritage Consultants. The proposed demolition is considered to result in minimal impact on the heritage significance of the Auburn Botanic Gardens.

4.      The application has been referred to the Cumberland Local Planning Panel (CLPP) for determination as Council is the land owner of the subject property which constitutes a ‘conflict of interest’.

5.      The application is recommended for Approval.

Report:

The subject site occupies part of a lot located on the southern side of Chiswick Road as shown in Figure 1 and 2. The subject lot forms part of the Auburn Botanic Gardens which is a local heritage item under Schedule 5 of Auburn LEP 2010.

The site is located adjacent to an art gallery and workshop known as the Peacock Gallery and Auburn Arts Studio and comprises an area defined by perimeter brick walls, a rudimentary timber wall and pedestrian turnstiles. A greenhouse in a partially dilapidated state, a pond, rock outcrop and three (3) trees currently exist within the area. The extent of the area is highlighted in red in Figure 2.

Figure 1 – Locality Plan of subject lot

Figure 2 - Aerial Plan of subject site

Description of the Proposed Development

Council has received a development application for ‘Demolition of a glasshouse, part of a perimeter wall, a timber wall, turnstiles and a pond and rock edging at the Auburn Botanic Gardens’.

The structures are proposed to be removed to facilitate the establishment of art studios as part of a planned expansion of the adjacent Peacock Gallery and Auburn Arts Studio building.

Figure 3 – Structures to be removed are highlighted in red

History

On 26 August 2009, DA-254/2009 for ‘Change of use of existing kiosk to arts and culture facility, exhibition gallery, meeting and storage room’ was approved under delegated authority.

On 5 August 2011, DA-199/2011 for ‘Change of use and internal refurbishment of existing fernery to art gallery (Peacock Gallery & Auburn Arts Studio – Auburn Botanic Gardens)’ was approved under delegated authority.

Applicants Supporting Statement

The applicant has provided a Statement of Environmental Effects prepared by Graham Bakewell dated April 2019 and was received by Council on 16 April 2019 in support of the application.

Contact with Relevant Parties

The assessing officer has undertaken a site inspection of the subject site and surrounding properties and has been in regular contact with the applicant throughout the assessment process.

Internal Referrals

Heritage Consultant

The development application was referred to an external Heritage Consultant who has advised that the structures to be demolished are considered to have ‘minimal heritage impact on the local heritage significance of the Auburn Botanic Gardens, as the affected structures are considered to have low to moderate heritage significance’. Therefore the proposal can be supported.

Tree Officer

The development proposal was referred to Council’s Tree Officer for comment as three (3) onsite trees are to be retained as part of the development. No issue was raised by council’s Tree Officer, subject to the imposition of tree protection conditions in any consent.

External Referrals

The application was not required to be referred to any external government authorities for comment.

Planning Comments

The provisions of any Environmental Planning Instruments (EP&A Act s4.15 (1)(a)(i))

State Environmental Planning Policies

The proposed development is affected by the following State Environmental Planning Policies:

(a)     State Environmental Planning Policy No. 55 – Remediation of Land (SEPP 55)

Clause 7 of SEPP 55 requires Council to be satisfied that the site is suitable or can be made suitable to accommodate the proposed development. The matters listed within Clause 7 have been considered in the assessment of the development application.

Matter for Consideration

Yes/No

Does the application involve re-development of the site or a change of land use?

 Yes  No

Does the application involve re-development of the site or a change of land use?

 Yes  No

In the development going to be used for a sensitive land use (e.g.: residential, educational, recreational, childcare or hospital)?

 Yes  No

Does information available to you indicate that an activity listed below has ever been approved, or occurred at the site?

acid/alkali plant and formulation, agricultural/horticultural activities, airports, asbestos production and disposal, chemicals manufacture and formulation, defence works, drum re-conditioning works, dry cleaning establishments, electrical manufacturing (transformers), electroplating and heat treatment premises, engine works, explosive industry, gas works, iron and steel works, landfill sites, metal treatment, mining and extractive industries, oil production and storage, paint formulation and manufacture, pesticide manufacture and formulation, power stations, railway yards, scrap yards, service stations, sheep and cattle dips, smelting and refining, tanning and associated trades, waste storage and treatment, wood preservation

 Yes  No

Is the site listed on Council’s Contaminated Land database?

 Yes  No

Is the site subject to EPA clean-up order or other EPA restrictions?

 Yes  No

Has the site been the subject of known pollution incidents or illegal dumping?

 Yes  No

Does the site adjoin any contaminated land/previously contaminated land?

 Yes  No

Has the appropriate level of investigation been carried out in respect of contamination matters for Council to be satisfied that the site is suitable to accommodate the proposed development or can be made suitable to accommodate the proposed development?

 Yes  No

Details of contamination investigations carried out at the site:

The site has historically been used as a garden and as such may have been subjected to pesticides and chemicals. Notwithstanding, the proposal relates to demolition only and there will be no significant soil disturbance. It is anticipated that any future construction works on the site may require the preparation of a contamination report.

Regional Environmental Plans

The proposed development is affected by the following Regional Environmental Plans:

(a)     Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005

The subject site is identified as being located within the area affected by the Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005. The proposed development raises no issues as no impact on the catchment is envisaged.

Local Environmental Plans

Auburn Local Environmental Plan 2010 (LEP)

The provision of the Auburn Local Environmental Plan 2010 is applicable to the development proposal. It is noted that the development achieves compliance with the key statutory requirements of the LEP and the objectives of the RE1 Public Recreation land use zone.

(a)     Permissibility:-

The proposed development is defined as a demolition works which will facilitate the future redevelopment of the site and is therefore permissible in the RE1 Public Recreation zone with consent.

The relevant matters to be considered under Auburn Local Environmental Plan 2010 and the applicable clauses for the proposed development are summarised below. A comprehensive LEP assessment is contained in Attachment 4.

Figure 4 – Auburn LEP 2010 Compliance Table

DEVELOPMENT STANDARD

COMPLIANCE

DISCUSSION

2.7 Demolition requires development consent

Yes

The proposed demolition works relate to structures located within a local heritage listed item and as such, is precluded from being undertaken as ‘exempt’ development under Subdivision 13, clause 2.24 of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.

 

Development consent is therefore required.

5.10 Heritage conservation

Yes

The proposal complies with the Objectives and relevant requirements of this clause. A full assessment is provided in Attachment 5. 

The provisions of any proposed instrument that is or has been the subject (EP&A Act s4.15 (1)(a)(ii))

(a)     Draft State Environmental Planning Policy (Environment)

The draft SEPP relates to the protection and management of our natural environment with the aim of simplifying the planning rules for a number of water catchments, waterways, urban bushland, and Willandra Lakes World Heritage Property. The changes proposed include consolidating the following seven existing SEPPs:

·        State Environmental Planning Policy No. 19 – Bushland in Urban Areas

·        State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011

·        State Environmental Planning Policy No. 50 – Canal Estate Development

·        Greater Metropolitan Regional Environmental Plan No. 2 – Georges River Catchment

·        Sydney Regional Environmental Plan No. 20 – Hawkesbury-Nepean River (No.2-1997)

·        Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005

·        Willandra Lakes Regional Environmental Plan No. 1 – World Heritage Property.

The draft policy will repeal the above existing SEPPs and certain provisions will be transferred directly to the new SEPP, amended and transferred, or repealed due to overlaps with other areas of the NSW planning system.

Changes are also proposed to the Standard Instrument – Principal Local Environmental Plan. Some provisions of the existing policies will be transferred to new Section 117 Local Planning Directions where appropriate.

The provisions of any Development Control Plans (EP&A Act s4.15 (1)(a)(iii))

The Auburn DCP 2010 provides guidance for the design and operation of development to achieve the aims and objectives of the Auburn LEP 2010. The proposal raises no issue of compliance with regard to Auburn DCP 2010. A comprehensive assessment and compliance table is contained in Attachment 5.

The provisions of any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4 (EP&A Act s4.15(1)(a)(iiia))

There is no draft planning agreement associated with the subject Development Application.

The provisions of the Regulations (EP&A Act s4.15 (1)(a)(iv))

The proposed development raises no concerns as to the relevant matters arising from the Environmental Planning and Assessment Regulations 2000 (EP&A Reg).

The Likely Environmental, Social or Economic Impacts (EP&A Act s4.15 (1)(b))

It is considered that the proposed development will have no significant adverse environmental, social or economic impacts in the locality.

The suitability of the site for the development (EP&A Act s4.15 (1)(c))

The subject site and locality is not known to be affected by any natural hazards or other site constraints likely to have a significant adverse impact on the proposed development. Accordingly, it is considered that the development is suitable in the context of the site and surrounding locality.

Submissions made in accordance with the Act or Regulation (EP&A Act s4.15 (1)(d))

Advertised (newspaper)                 Mail                 Sign        Not Required

In accordance with Council’s Notification requirements contained within the Auburn DCP 2010, the proposal was publicly notified for a period of fourteen (14) days between 28 May 2019 and 11 June 2019. No submissions were received in respect of the proposed development.

The public interest (EP&A Act s4.15(1)(e))

In view of the foregoing analysis it is considered that the development, if carried out subject to the conditions set out in the recommendation below, will have no significant adverse impacts on the public interest.

Section 7.11 (Formerly S94) Contribution Towards Provision or Improvement of Amenities or Services

The development does not require the payment of contributions in accordance with Council’s Section 94 Contributions Plans.

Disclosure of Political Donations and Gifts

The applicant and notification process did not result in any disclosure of Political Donations and Gifts.

Conclusion:

The development application has been assessed in accordance with the relevant requirements of the Environmental Planning and Assessment Act 1979, SEPP 55 – Remediation of Land, SREP (Sydney Harbour Catchment) 2005, Auburn LEP 2010 and Auburn DCP 2010 and is considered to be satisfactory for approval subject to conditions.

For these reasons, it is considered that the proposal is satisfactory having regard to the matters of consideration under Section 4.15 of the Environmental Planning and Assessment Act 1979, and the development may be approved subject to conditions.

Consultation:

There are no further consultation processes for Council associated with this report.

Financial Implications:

There are no further financial implications for Council associated with this report.

Policy Implications:

There are no policy implications for Council associated with this report.

Communication / Publications:

The final outcome of this matter will be notified in the newspaper. The objectors will also be notified in writing of the outcome.

 

Report Recommendation:

That Development Application No. 122/2019 for ‘Demolition of a glasshouse, part of a perimeter wall, a timber wall, turnstiles and a pond and rock edging at the Auburn Botanic Gardens’ on land at 96 Chiswick Road, AUBURN be approved subject to attached conditions.

 

Attachments

1.      Draft Notice of Determination

2.      Architectural Plans

3.      Heritage Consultant Comments

4.      Auburn LEP 2010 Assessment

5.      Auburn DCP 2010 Assessment  

 


DOCUMENTS
ASSOCIATED WITH
REPORT LPP056/19

Attachment 1

Draft Notice of Determination


Cumberland Local Planning Panel Meeting

 14 August 2019


 


 


 


 


 


 


 


DOCUMENTS
ASSOCIATED WITH
REPORT LPP056/19

Attachment 2

Architectural Plans


Cumberland Local Planning Panel Meeting

 14 August 2019


 


DOCUMENTS
ASSOCIATED WITH
REPORT LPP056/19

Attachment 3

Heritage Consultant Comments


Cumberland Local Planning Panel Meeting

 14 August 2019


 


 


 


 


 


 


 


 


 


 


 


 


 


 


DOCUMENTS
ASSOCIATED WITH
REPORT LPP056/19

Attachment 4

Auburn LEP 2010 Assessment


Cumberland Local Planning Panel Meeting

 14 August 2019


 


DOCUMENTS
ASSOCIATED WITH
REPORT LPP056/19

Attachment 5

Auburn DCP 2010 Assessment


Cumberland Local Planning Panel Meeting

 14 August 2019


 


Cumberland Local Planning Panel Meeting

14 August 2019

 

Item No: LPP057/19

Section 4.56 Modification Application - 1/181 McCredie Road, Guildford West

Responsible Division:                    Environment & Planning

Officer:                                              Executive Manager Development and Building

File Number:                                    2007/105/5  

 

 

Application lodged

17 May 2019

Applicant

PGH Environmental Planning

Owner

Sunshine Island (Aust) Pty Ltd

Application No.

2007/105/5

Description of Land

Lot 1 in SP36943; 1/181 McCredie Road, Guildford West

Proposed Development

Section 4.56 application to an existing sex services premises to formalise unauthorised internal works, internal alterations and additions and increase number of sex workers from 11 to 12.

Site Area

2,845.5m2

Zoning

IN1 – General Industrial

Principal Development Standards

Minimum Lot Size: 1200sqm – No change sought 

Disclosure of political donations and gifts

Nil disclosure

Heritage

The subject site does not contain a heritage item, is not located within the vicinity of a heritage item or within a heritage conservation area.

Issues

·  Service Rooms vs Staff Numbers

Summary:

1.      DA2007/105/1 was lodged on 18 August 2006 for internal alterations and additions to existing industrial unit and its use as a brothel. This application was refused by Council on 20 February 2007 and then granted a deferred commencement approved via Land and Environment Court on 29 March 2007. This consent was subsequently activated on 7 August 2007.

2.      DA2007/105/2 was lodged on 28 April 2009 for modifications to a Court Approval including; Construct 5 additional working rooms to create a total of 8 working rooms; Construct additional waiting and staff rooms; Retrospective approval for works undertaken without prior consent (e.g., reconfiguration of room layouts/uses and associated facilities such as bathrooms); Increase the number of sex workers operating from the premises at any one time from 3 to 8; and Extend hours of operation from 10:00am to 10:00pm Monday to Friday & 10:00am to 8:00pm on Saturday (no work Sunday) to 24 hours a day, 7 days a week. This application was approved by Council on the 11 August 2009.

3.      DA2007/105/3 was lodged on 21 March 2011 for modifications approving to extend the brothels hours of operation permanently to 24 hours 7 days a week. This application was approved by Council on 1 November 2011.

4.      DA2007/105/4 was lodged on 8 July 2014 for modifications approving alterations and additions to the premises and continued use as a ‘sex service premises’. This application was approved on 3 March 2015.

5.      The application was notified to surrounding properties from 14 to 28 June 2019, a site notice was placed on the site and was advertised in the local paper. No submissions were received as a result of the notification.

6.      The application is being reported to the Cumberland Local Planning Panel (CLPP) for determination as it is a sensitive development type being for the purpose of sex services premises. 

7.      The subject application has been assessed against the relevant provisions of the Environmental Planning and Assessment Act 1979, Holroyd Local Environmental Plan 2013 and the Holroyd Development Control Plan 2013.

8.      No variations are sought by the subject application.

9.      The application is recommended for approval subject to the conditions in the draft determination at Attachment 3.

Report:

Subject Site and Surrounding Area

The subject site is known as Unit 1, 181 McCredie Road, Guildford West and is legally described as Lot 1 in SP 36943. The subject site is located on the Northern side of McCredie Road. The site is occupied by the existing approved two storey industrial development. The subject unit is located at the southern end of the subject site fronting McCredie Street. The surrounding vicinity is occupied by industrial estates of one – two storey construction, accommodating various sized estates and various industrial uses.

Aerial view of the locality with subject site shown hatched. Source: Cumberland Council 2019

Zoning map. Source: Cumberland Council 2019

Site Layout with subject site shown outlined in red. Source: 3D Works as edited by Cumberland Council 2019

Site frontage to McCredie Road. Source: Cumberland Council 2019

Subject Site within Industrial Unit Development. Source: Cumberland Council 2019

Subject Industrial Unit Parking Arrangement. Source: Cumberland Council 2019

Description of Proposed Development

The existing approval for the subject brothel (DA2007/105 and subsequent modifications) permits the operation 24 hours, 7 days a week. It provides eleven service rooms across two stories with 11 sex workers and includes 7 car parking spaces, six external and one internal space.

The proposed modification seeks to reconfigure the layout of both the ground and first floor levels so as to increase the number of service rooms from 11 to 14, reconfigure the client waiting areas, provide reconfigured staff facilities (inclusive of additional rest areas). The proposal seeks to increase staff numbers from 11 to 14 (12 sex workers and 2 administration/management staff) in accordance with increasing the service rooms. The proposal retains the existing approved car parking provision.


 

Site History

Date

Action

20 February 2007

DA 2007/105/1 for internal alterations and additions to existing industrial unit and its use as a brothel was refused by Council. Notice of Determination can be viewed at Attachment 7.

29 March 2007

DA 2007/105/1 for internal alterations and additions to existing industrial unit and its use as a brothel appeal upheld by Land and Environment Court, granting deferred commencement approval. Notice of Determination can be viewed at Attachment 8.

7 August 2007

DA 2007/105/1 for internal alterations and additions to existing industrial unit and its use as a brothel, consent activated.

11 August 2009

DA 2007/105/2 for modifications to a Court Approval including; Construct 5 additional working rooms to create a total of 8 working rooms; Construct additional waiting & staff rooms; Retrospective approval for works undertaken without prior consent (e.g., reconfiguration of room layouts/uses and associated facilities such as bathrooms); Increase the number of sex workers operating from the premises at any one time from 3 to 8; and Extend hours of operation from 10:00am to 10:00pm Monday to Friday & 10:00am to 8:00pm on Saturday (no work Sunday) to 24 hours a day, 7 days a week approved by Council. Notice of Determination can be viewed at Attachment 9.

1 November 2011

DA 2007/105/3 for modifications approving to extend the brothels hours of operation permanently to 24 hours 7 days a week approved by Council. Notice of Determination can be viewed at Attachment 10.

3 March 2015

DA 2007/105/4 for modifications approving alterations and additions to the premises and continued use as a ‘sex service premises’ approved. Notice of Determination can be viewed at Attachment 11.

12 April 2019

Pre-DA Meeting Minutes provided following meeting on 19 February 2019 in regards to a Section 4.56 Application for unauthorised works, alterations and additions to the subject site and to increase the number of sex workers. Meeting Minutes can be viewed at Attachment 12.

Application History

Date

Action

17 May 2019

DA 2007/105/5 lodged with Council

12 June 2019

The application was referred externally to:

-     New South Wales Police

The application was referred internally to:

-     Environmental Health Unit

-     Building Services Unit

14 to 28 May 2019

Application placed on public notification for 14 days

26 June 2019

Application referred to CLPP for determination

Applicant’s Supporting Statement

A Statement of Environmental Effects prepared by PGH Environmental Planning, dated 14 May 2019 was submitted with the subject modification application and can be viewed at Attachment 4.

Further to this an amended Plan of Management has been submitted to support the subject modification application and can be viewed at Attachment 5.

Contact with Relevant Parties

The assessing officer has undertaken an inspection of the subject site and has been in contact with the applicant throughout the assessment process.

 

Internal Referrals

Environmental Health

Satisfactory subject to conditions applied under previous consent and additional standard and non-standard conditions of consent.

Building Services Unit

Satisfactory subject to conditions applied under previous consent and additional conditions relating to BCA Compliance.

External Referrals

New South Wales Police

The application was referred to NSW Police for comment who advised that the operation is deemed low crime risk. Accordingly, the NSW Police provided no further comment or conditions.

Planning Assessment

Section 4.55(2) of the Environmental Planning and Assessment Act 1979 (EP & A Act)

Pursuant to Section 4.55(2), a consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if:

Requirement

Comment

(a)  It is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and

The development as proposed to be modified is substantially the same as the development for which consent was originally granted. The proposal provides for internal fit out changes and increase in staff numbers to the approved brothel.

(b)  it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and

The modified proposal was referred to NSW Police for comment. No objections were raised by the referral bodies beyond conditions recommended to be imposed.

(c)   it has notified the application in accordance with:

(i)  the regulations, if the regulations so require, or

(ii)  a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

 

The application was notified for 14 days from 8 to 22 May 2019, in accordance with HDCP 2013.

(d)  it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be.

 

Subsections (1) and (1A) do not apply to such a modification.

No submissions were received in response to the notification period.

(3)  In determining an application for modification   of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application.

 

 

 

 

 

 

The provisions of the applicable EPIs are discussed elsewhere in this report.

 

The provisions of the applicable DCP are discussed elsewhere in this report.

 

There are no planning agreements or draft planning agreements related to this application.

 

There are no relevant matters referred to in the regulations.

 

The likely impacts of the development as proposed to be modified are considered satisfactory.

 

The site is considered to be suitable for the development as proposed to be modified.

 

No submissions were received as a result of the notification.

 

Approval of the subject application is not contrary to the public interest.

(4) The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified.

(a) Noted

Section 4.15 of the Environmental Planning and Assessment Act 1979 (EP & A Act)

Environmental Planning Instruments

The following Environmental Planning Instruments are relevant to the assessment of the subject application:

(a)     State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55)

The requirement at clause 7 of SEPP 55 for Council to be satisfied that the site is suitable or can be made suitable to accommodate the proposed development was considered under the original application. The proposed modifications do not include any building or ground works which will raise any new concerns about potential contamination.

(b)     Holroyd Local Environmental Plan 2013 (HLEP 2013)

The proposal is defined as ‘sex services premises’ under the provisions of HLEP 2013. ‘Sex Services Premises’ are not permissible within the IN1 – General Industrial zone which applies to the land. However, under Clause 5 of Schedule 1 Additional Permitted Uses the use of certain land at Guildford West including the subject site, permits development for the purposes of sex services premises with development consent.

The proposed modifications do not result in any change to the maximum lot size, which is the only development standard applicable to the subject site.

The site is identified as being of moderate salinity but as the proposed modifications do not include any building or ground works which will raise any new concerns about potential salinity levels on site.

Attachment 1 contains a full assessment against the HLEP 2013.

Development Control Plans

(a)     Holroyd Development Control Plan 2013

HDCP 2013 contains general controls which relate to all developments under Part A, and Part D contains Planning Controls for Brothels. The proposal complies with all relevant provisions of the HDCP2013 as can be seen in Attachment 2, which contains a full assessment against the planning controls for Sex Services Premises.

Service Rooms

The subject application proposes to increase the number of service rooms provided on site from 11 to 14. The application also seeks to increase the number of sex workers permitted to work onsite from 11 to 12 with 2 additional management/office staff members working on site.

Concern was flagged by the assessing officer as to the necessity to have rooms in excess of the number of permitted sex workers being sought. Management of the brothel advised that this was a necessity so as to allow for ongoing maintenance, upgrade and cleaning works to occur on site without impacting the ability of the brothel to function at capacity. Further to this, the management advised anecdotally that there is a low likelihood of operating at capacity.

It is considered that given the prescriptive cleaning treatments required of service rooms and the likelihood for maintenance works to be carried out, the justification is sufficient. Accordingly there is no further concern with the proposed 14 service rooms and 12 sex workers proposed under the subject application.

Any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4

There is no planning agreement or draft planning agreement associated with the subject Development Application.

The provisions of the Regulations

The regulations do not proscribe any relevant matters for consideration.

Any coastal zone management plan (within the meaning of the Coastal Protection Act 1979)

There is no Coastal Zone Management Plan applicable to the subject site

The likely impacts of the development

The likely environmental, social and economic impacts of the development have been assessed and are considered satisfactory.

The suitability of the site for the development

The site is considered suitable for the proposed development.

Submissions made in accordance with the Act or Regulation

Advertised (newspaper)               Mail              Sign                  Not Required

In accordance with Part E - Public Participation of HDCP 2013, the proposal was publicly notified for a period of 14 days between 14 and 28 June 2019. As a result of the notification, Council received no public submissions.

Section 7.11 of The Environmental Planning & Assessment Act 1979

The subject development does not attract development contributions in accordance with Holroyd Section 94 Development Contributions Plan 2013.

Accordingly no condition was imposed on the original consent requiring payment of contributions, nor is there any condition required to be imposed under the subject application.

The Public Interest

The public interest is served by permitting the orderly and economic use of land, in a manner that is sensitive to the surrounding environment and has regard to the reasonable amenity expectations of surrounding land users. In view of the foregoing analysis, it is considered that approval of the proposed development would not be contrary to the public interest.

Disclosure of Political Donations and Gifts

The NSW Government has introduced disclosure requirements for individuals or entities with a relevant financial interest as part of the lodgement of various types of development proposals and requests to initiate environmental planning instruments or development control plans.

The application and notification process did not result in any disclosure of Political Donations or Gifts.

Conclusion:

The development application has been assessed in accordance with the relevant requirements of the Environmental Planning and Assessment Act 1979, Holroyd Local Environmental Plan 2013 and the Holroyd Development Control Plan 2013 and is considered to be satisfactory.

Consultation:

There are no further consultation processes for Council associated with this report.

Financial Implications:

There are no further financial implications for Council associated with this report.

Policy Implications:

There are no policy implications for Council associated with this report.

Communication / Publications:

The final outcome of this matter will be notified in the newspaper. The objectors will also be notified in writing of the outcome.

 

Report Recommendation:

That Development Application 2007/105/5 a Section 4.56 modification application of a Court Approval application to an existing sex services premises to formalise unauthorised internal works, internal alterations and additions and increase number of sex workers from 11 to 12 be approved subject to the conditions within the draft notice of determination provided at Attachment 3.

 

Attachments

1.      HLEP 2013 Compliance Table

2.      HDCP 2013 Compliance Table

3.      Draft Notice of Determination

4.      Proposed Architectural Plans

5.      Approved Architectural Plans under DA 2007/105

6.      Plan of Management

7.      DA 2007/105 - Notice of Determination of Application - Refusal

8.      DA 2007/105 - Notice of Determination - Land Environment Court Approval

9.      DA 2007/105/2 - Notice of Determination of Application

10.    DA 2007/105/3 - Notice of Determination of Application

11.    DA 2007/105/4 - Notice of Determination of Application

12.    PRE- DA Meeting Minutes  

 


DOCUMENTS
ASSOCIATED WITH
REPORT LPP057/19

Attachment 1

HLEP 2013 Compliance Table


Cumberland Local Planning Panel Meeting

 14 August 2019


 


 


DOCUMENTS
ASSOCIATED WITH
REPORT LPP057/19

Attachment 2

HDCP 2013 Compliance Table


Cumberland Local Planning Panel Meeting

 14 August 2019


 


 


 


 


DOCUMENTS
ASSOCIATED WITH
REPORT LPP057/19

Attachment 3

Draft Notice of Determination


Cumberland Local Planning Panel Meeting

 14 August 2019


 


 


 


DOCUMENTS
ASSOCIATED WITH
REPORT LPP057/19

Attachment 4

Proposed Architectural Plans


Cumberland Local Planning Panel Meeting

 14 August 2019


 


 


DOCUMENTS
ASSOCIATED WITH
REPORT LPP057/19

Attachment 5

Approved Architectural Plans under DA 2007/105


Cumberland Local Planning Panel Meeting

 14 August 2019


 


 


 


 


DOCUMENTS
ASSOCIATED WITH
REPORT LPP057/19

Attachment 6

Plan of Management


Cumberland Local Planning Panel Meeting

 14 August 2019


 


 


 


DOCUMENTS
ASSOCIATED WITH
REPORT LPP057/19

Attachment 7

DA 2007/105 - Notice of Determination of Application - Refusal


Cumberland Local Planning Panel Meeting

 14 August 2019


 


DOCUMENTS
ASSOCIATED WITH
REPORT LPP057/19

Attachment 8

DA 2007/105 - Notice of Determination - Land Environment Court Approval


Cumberland Local Planning Panel Meeting

 14 August 2019


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


DOCUMENTS
ASSOCIATED WITH
REPORT LPP057/19

Attachment 9

DA 2007/105/2 - Notice of Determination of Application


Cumberland Local Planning Panel Meeting

 14 August 2019


 


 


DOCUMENTS
ASSOCIATED WITH
REPORT LPP057/19

Attachment 10

DA 2007/105/3 - Notice of Determination of Application


Cumberland Local Planning Panel Meeting

 14 August 2019


DOCUMENTS
ASSOCIATED WITH
REPORT LPP057/19

Attachment 11

DA 2007/105/4 - Notice of Determination of Application


Cumberland Local Planning Panel Meeting

 14 August 2019


 


 


 


DOCUMENTS
ASSOCIATED WITH
REPORT LPP057/19

Attachment 12

PRE- DA Meeting Minutes


Cumberland Local Planning Panel Meeting

 14 August 2019