Agenda of Cumberland Local Planning Panel Meeting

Cumberland Local Planning Panel Meeting

9 October 2019

Item No: LPP064/19

Section 4.55(1A) Modification Application for 9-19 Mary Street, Auburn

Responsible Division: Environment & Planning

Officer: Executive Manager Development and Building

File Number: DA-92/2019

Application lodged	11 September 2019
Applicant	Rolz Group Pty Ltd
Owner	Group As Pty Ltd
Application No.	DA-92/2019
Description of Land	9-19 Mary Street, AUBURN NSW 2144, Lot 26 Sec 4 DP 982836, Lot 25 Sec 4 DP 982836, Lot 1319 DP 1241830
Approved Development	Alterations and additions to approved 12 storey mixed use building (DA-52/2017) at 13-19 Mary Street, Auburn including the construction of an additional 12 storey mixed use building component at 9-11 Mary Street, Auburn which will accommodate a total of 157 residential units (41 x 1 bedroom, 90 x 2 bedroom and 26 x 3 bedroom units), 5 x commercial suites, 1 x office suite over part 4 part 5 level basement for 285 vehicles
Proposed Modification	Section 4.55(1A) modification application to modify Condition 7 to allow consolidation of allotments to occur post Construction Certificate and prior to the issue of the Occupation Certificate
Site Area	2,727.86m²
Zoning	B4 – Mixed Use under the Auburn LEP 2010
Disclosure of political donations and gifts	Nil disclosure
Heritage	Yes – Land is located in the vicinity of a heritage item.
Principal Development Standards	FSR (unchanged) Permissible: 5:1 Proposed: 4.97:1 Height of Building (unchanged) Permissible: 38m Proposed: 41m
Issues	Timing of lot consolidation

Summary:

1. Development Application No.DA-92/2019/A was received on 11 September 2019 for the Section 4.55(1A) modification to modify Condition 7 to allow consolidation of allotments to occur post Construction Certificate and prior the issue of the Occupation Certificate.

2. The original development application, the subject of this modification, was assessed by an Independent Town Planning Consultant on behalf of Council. The Independent Town Planning Consultant recommended Condition 7 to allow consolidation of allotments to occur post Construction Certificate and prior the issue of the Occupation Certificate. This recommendation was not endorsed by the Cumberland Local Planning Panel, and the application was determined by the Panel, subject to the amended condition requiring the consolidation prior to the Construction Certificate being issued.

3. The s. 4.55(1A) application is recommended for conditional approval.

4. The application is referred to the Panel as the proposal seeks to modify a condition specifically amended by the Panel.

Report:

History

· DA-52/2017 was lodged with Council on 10 February 2017 for the demolition of existing dwelling houses and the construction of a 12 storey mixed use development comprising 105 residential units and 2 commercial tenancies over 4 levels of basement parking at 13-19 Mary Street, Auburn.

· DA-52/2017 was granted deferred commencement consent on 21 December 2017.

· The deferred commencement matters were completed and the consent became operative on 13 April 2018. Construction has commenced on site.

· A Complying Development Certificate was issued for the demolition of the dwelling on No 11 Mary Street on 7 February 2017 and on No 9 Mary Street on 4 February 2019.

· DA-92/2019 was lodged on 25 March 2019.

· The application was presented to the CLPP on 14 August 2019. The application was deferred to be determined electronically as amendments were requested. In the course of the electronic determination, the Panel amended Condition 7 requiring the site to be amalgamated prior to issue of the construction certificate. The CLPP determined the application on 3 September 2019.

· DA-92/2019 was lodged with Council on 11 September 2019

Subject Site and Surrounding Area

The subject site is known as Lot 1319, DP 1241830 and Lots 25 and 26, DP 982836, No. 9-19 Mary Street Auburn. The subject site is located on the northwest corner of Mary Street and Harrow Road.

The location of the site is shown at Figure 1. An aerial image of the site and surrounding area is at Figure 2.

The site is situated within a mixed use zone within the Auburn town centre and is approximately 400m walking distance to Auburn railway station.

The site has a frontage to Mary Street of 74.63m to the south and a frontage to Harrow Road of 36.56m to the east. The site is generally rectangular in shape and has a total area of 2,727.86m².

Part of the site comprising 13-19 Mary Street was approved under DA-52/2017 for the demolition of existing dwelling houses and the construction of a 12 storey mixed use development comprising 105 residential units and 2 commercial tenancies over 4 levels of basement parking. Works have commenced on site.

No.9-11 Mary Street contains an existing single storey brick dwelling and a detached brick garage. Demolition of this dwelling has been approved under a separate CDC.

The site is adjoined by a single dwelling and a townhouse building to the north. Land to the west is developed with single storey cottages. A place of worship and commercial buildings exist across Harrow Road to the east. Land across Mary Street to the south is comprised of professional consulting rooms.

Figure 1 – Locality plan of subject site

Figure 2 – Aerial view of subject site

Description of the Proposed Modification

Council has received a modification application to DA-92/2019 at 9-19 Mary Street, Auburn. The modification application proposes to amend Condition 7 of the consent to allow for the consolidation of allotments to occur prior to the issue of the occupation certificate as opposed to prior to the issue of the construction certificate.

The recommended conditions to the original consent included a consolidation conditions that requires the allotments on site being 13-19 and 9-11 Mary Street to be consolidated prior to the issue of the Occupation Certificate. The CLPP made an amendment to the condition to require the consolidations of allotments to occur prior to the issue of the Construction Certificate to ensure the orderly development of the site as a whole.

The applicant has stated the following reasons in support of amending condition 7:

1. The requirement to provide consolidation of the site prior to construction certificate has a detrimental impact on the ability to obtain finance. Financial institutions require the title/s as security of the proposed building to be constructed and will not accept any other financial institution as an interested party. The company is in final stages of securing finance from a different institution and this condition has a detrimental and adverse impact on the viability of the project. This includes the Sydney Water Diversion works that benefits the community in the reduction of flood impacts.

2. The proposed modification complies with Residential part of Auburn DCP Clause 8.1 development control D2 that requires consolidation prior to occupation certificate.

3. The requirement to consolidate prior to occupation certificate is a Council standard condition and industry wide as well. This standard condition has been consistently imposed on all development consents by Council. There appears no reason to adversely amend prior to construction certificate.

4. The recommendation to consolidate at occupation certificate would enable the orderly development of the whole site and ensure that the project is financed and constructed accordingly.

5. The site under construction known as Building B at 13-19 Mary Street will comply with the BCA in terms of construction (eg fire rating) so that consolidation at construction certificate is not required. There will be no adverse impact on the construction of Building A at 9-11 Mary Street. The buildings when finished will appear as a single structure; however, they will be two separate buildings sharing common facilities such as driveway access, electricity substation, loading dock and fire control panel and hydrant systems.

Planners Comments:

No objection is raised to the proposed amendment to Condition 7. In addition to the reasons given above, it is noted that the consolidation prior to Occupation Certificate would still achieve the purpose of ensuring the orderly development of the site as a whole.

Furthermore, to ensure a separate Occupation Certificate is not issued to 13-19 Mary Street, the Condition may be amended to provide clarity on the required Occupation Certificate as follows:

The individual lots comprising 9-19 Mary Street Auburn are to be consolidated into a single lot. Written evidence of registration of the plan of consolidation by NSW Land Registry Service is to be submitted to Council prior to the issue of any occupation certificate for DA-52/2017 and DA-92/2019 being 9-19 Mary Street, Auburn.

Applicants Supporting Statement

The applicant has provided a Statement of Environmental Effects dated September 2019 and was received by Council on 11 September 2019 in support of the application.

Contact with Relevant Parties

The assessing officer has been in regular contact with the applicant throughout the assessment process.

Internal Referrals

The application was not required to be referred to any internal Council teams for comment.

External Referrals

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

Planning Comments

Section 4.55(1A):

Requirement	Comments
Proposed modification is of minimal environmental impact	Proposed modification is of minimal environmental impact
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 original consent. That is, a mixed use development 12 storeys in height.
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	See discussion on “Public Notification” in this report.
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.	See discussion on “Public Notification” in this report.

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 original development application.

(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 modification proposed relates to a condition only and does not alter the nature of the parent approval to the extent that further non-compliances with the ADG are noted and therefore performs satisfactorily.

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

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

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

BASIX Certificate 1003324M dated issued on 22 March 2019 prepared by Building Sustainability Assessments has been submitted with Council for the parent application and is considered to be satisfactory.

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 modification 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 LEP 2010

The provision of the Auburn LEP 2010 is applicable to the modification application. It is noted that the modification relates to a condition only and does not alter the assessment of the parent DA.

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

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

The Auburn Development Control Plan 2010 (ADCP) provides guidance for the design and operation of development to achieve the aims and objectives of the Auburn Local Environmental Plan 2010.

Local Centres, Residential Flat Buildings, Parking & Loading, Access & Mobility and Stormwater Drainage chapters of the ADCP 2010 are applicable to the development. The proposed modifications do not alter the nature of the parent approval to the extent that further non-compliances with this DCP are noted.

Furthermore, Clause 8.1 of the Residential Part of the ADCP 2010 states that consolidation of allotments shall occur prior to the issue of the Occupation Certificate. The modification to condition 7 would make the proposal compliant with this control.

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 modification 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

Due to the nature of the modification application the application was not required to be notified.

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

There are no proposed changes to the number of units and therefore no additional S7.11 contribution is required.

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, SEPP 65 – Design Quality of Residential Apartment Development, Auburn LEP 2010 and Auburn DCP 2010 and is considered to be satisfactory for approval subject to modification of condition 7.

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 Modification Application No. DA-92/2019/A to modify Condition 7 to allow consolidation of allotments to occur post Construction Certificate and prior to the issue of the Occupation Certificate on land at 9-19 Mary Street, AUBURN NSW 2144 be approved, subject to the following appropriate modified condition:

A: Amend Condition 7 to read as follows:

Consolidation of lots

Reason:- to ensure the orderly development of the site as a whole.

Attachments

1. Draft Notice of Determination ⇩

2. Statement of Environmental Effects ⇩

3. CLPP Minutes of determination ⇩

Cumberland Local Planning Panel Meeting

9 October 2019

Item No: LPP065/19

Development Application - 12 & 14 Pritchard Street, East Wentworthville

Responsible Division: Environment & Planning

Officer: Executive Manager Development and Building

File Number: DA 2018/454/1

Application lodged	28 November 2018
Applicant	Antoine Saouma
Owner	ACHI Constructions Pty Ltd
Application No.	2018/454
Description of Land	12 & 14 Pritchard Street, East Wentworthville
Proposed Development	Demolition of existing structures and construction of part 3, part 5 and part 6 storey shop top housing development comprising a commercial tenancy at ground floor level; 28 residential units above 2 levels of basement carpark accommodating 55 car parking spaces and 1 car wash bay (as amended)
Site Area	1379.6m²
Zoning	B2 – Local Centre
Principal Development Standards	Floor Space Ratio: Max. 2:1 Height of Buildings: Max. 17m · Proposed: 18.8m to the parapet of upper floor habitable spaces (10.5% variation); and 19.4m to the lift overrun (a maximum variation of 14% 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 not a heritage item but is located within the vicinity of a local heritage item.
Issues	· Variation to maximum 17m building height (HLEP 2013) · Building separation (ADG) · Upper storey setback (HDCP 2013)

Summary:

1. On 28 November 2018, development application (DA 2018/454) for the demolition of existing structures and construction of a part 5, part 6 storey shop top housing development over 2 levels of basement car parking accommodating 31 units and 47 parking spaces was lodged with Council.

2. 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 9 January 2019 to 30 January 2019. In response, the application received no submission.

3. The application as lodged had numerical non-compliance to Floor Space Ratio (FSR) standard in addition to other matters including building height, units internal layout, access, parking and waste management and as such the application was deferred seeking amended plans. Amended plans and information were provided to Council on 25 July 2019. The design refinements resulted in the reduction of the overall gross floor area of the development now complaint with the FSR standard. The amended plans did not warrant re-notification.

4. The application as amended proposes demolition of existing structures and construction of part 3, part 5 and part 6 storey shop top housing development comprising a commercial tenancy at ground floor level; 28 residential units above 2 levels of basement carpark accommodating 55 car parking spaces and 1 car wash bay.

5. The subject application has been assessed against the relevant provisions of the Environmental Planning and Assessment Act 1979, State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65), Apartment Design Guide, Holroyd Local Environmental Plan 2013 (HLEP) and Holroyd Development Control Plan 2013 (HDCP).

6. The proposal seeks the following non-compliances which are considered supportable as discussed in detail elsewhere in the report:

Control	Required	Proposed	% Variation
Building Height	Max. 17m (HLEP 2013)	19.4m	(14%)
Building Separation (Between habitable rooms and balconies)	9m ( 6th storey) (ADG)	Min 4.5m provided for roof top communal area along the eastern and western side boundaries.	Max 50%
Street wall height requiring an upper storey setback > 3 storeys	3m upper storey front setback along Pritchard Street	A varying setback of 0 to 3m provided for level 3	N/A

7. 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 Developments applies.

8. The application is recommended for Deferred Commencement approval subject to the conditions in the draft determination at Attachment 4.

Report:

Introduction

The subject site is known as 12 & 14 Pritchard Street, East Wentworthville, and is legally described as Lot 1, Deposited Plan (DP) 300345 and Lot 1, DP 168165. The site is located on the southern side of Pritchard Street within the B2 Local Centre zone. The site forms a regular midblock with a total area of 1379.6m² and a combined frontage of 30m to Pritchard Street. The site has a fall of approximately 1.5m from the rear to front. The site is currently occupied by a Pathology Centre and a single storey dwelling. There is no significant vegetation on site.

The subject site is located within Wentworthville Town Centre and adjoins R2 Low Density Residential to the south. The site is bounded by B2 zoned land to the north, east and west. There is a transition occurring currently with higher density zoned sites being developed into residential flat buildings further to the south. The wider locality contains a mix of commercial and residential land uses.

The site, including Wentworthville Town Centre, is the subject of a Council initiated Planning Proposal for Wentworthville Centre Revitalisation Project to amend planning controls, including increases to building height and floor space ratios (FSRs) and the introduction of precinct specific development controls.

Figure 1 Aerial view of the locality with subject site (12 & 14 Pritchard Street, East Wentworthville)

Figure 2 - Zoning map with subject site shown hatched. Source: Cumberland Council 2019

Figure 3, 4, 5 & 6 (12 & 14 Pritchard Street, East Wentworthville). Source: Council 2019

Description of The Proposed Development

DA 2018/454 as amended proposes for the demolition of existing structures and construction of part 3, part 5 and part 6 shop top housing development comprising a commercial tenancy at ground floor level; 28 residential units above 2 levels of basement carpark accommodating 55 car parking spaces and 1 car wash bay.

Key features of the development proposal are as follows:-

Level	Details
Upper Basement	- 20 commercial spaces (including 2 accessible parking spaces) - 6 visitor car spaces - 16 bicycle spaces - Storage, lift and fire stairs - 1 car wash bay
Lower basement	- 29 residential car spaces including 4 accessible parking spaces - Storage, lift and fire stairs
Ground floor	- Commercial tenancy with an area of 220m², - Commercial outdoor area (180m²) - lobby area with lift and stairwell core; - Communal open space; - Bin storage area
Level 1	- 9 residential units
Level 2	- 9 residential units
Level 3	- 5 residential units
Level 4	- 3 residential units
Level 5	- 2 residential units - roof top communal open space

Access to the basement car park is provided from a new vehicular crossing proposed on the north western section of the subject site.

The dwelling mix of the proposal is as follows:

· 4 x 1 bedroom units (14.3%);

· 20 x 2 bedroom units (71.4%); and

· 4 x 3 bedroom units (14.2%)

Figure 7 – Perspective of proposed development

Application History

Date	Action
28 November 2018	The subject development application (DA 2018/454) was lodged with Council.
17 December 2018	The application was referred to the following internal and external sections: · Development Engineering · Traffic Engineering · Landscape and Tree Management · Environmental Health Unit · Waste Management · Transgrid · Endeavour Energy · Cumberland Police Area Command
9 January 2019 to 30 January 2019	Application placed on public notification. In response, no submission was received.
27 June 2019	The application was deferred for the following reasons: · Floor Space Ratio · Building height · Units size and layout/amenity · Building separation · Traffic engineering · Waste
19 July 2019	Amended plans and additional information submitted to Council, addressing the deferral letter dated 27 June 2019. The application did not warrant re-notification as the amendments made did not result in a greater environmental impact.
9 October 2019	Application referred to CLPP for determination.

Applicant’s Supporting Statement

Statement of Environmental Effects prepared by Think Planners Pty Ltd, dated 26 November 2018 was submitted in support of the application.

The applicant has also submitted a written request to vary the development standard for building height, prepared by Think Planners dated 27 August 2019.

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 development application was referred to Council’s Development Engineer for comment who has advised that the development is supportable with regards to the proposed new vehicular crossing and stormwater management, subject to deferred commencement conditions.

Traffic Engineer

The development application was referred to Council’s Traffic Engineer for comment who has advised that the development is supportable in regards to parking, traffic management and on-site parking provision in the basement level, subject to deferred commencement conditions.

Tree Management Officer

The development application was referred to Council’s Tree Management Officer for comment who has advised that the development is supportable, subject to conditions.

Waste Management Officer

The development application was referred to Council’s Waste Management Officer for comment who has advised that the proposed waste management is supportable, subject to conditions.

Environmental Health Unit

The development application was referred to Council’s Environmental Health Unit for comment who has advised that the proposal is satisfactory, subject to conditions.

External Referrals

Transgrid

The development application was referred to Transgrid for comment who has advised that the development is supportable in regards to not affecting Transgrid’s asset.

Endeavour Energy

The development application was referred to Endeavour Energy for comment who has advised that the development is supportable in regards to electricity connection and sufficient clearance to existing electricity asset, subject to conditions.

NSW Police

The application was referred to NSW Police for comment regarding CPTED who has advised that the proposal is satisfactory, subject to conditions.

Planning Assessment

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

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

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

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. A site inspection reveals the site does not have any obvious history of a previous land use that may have caused contamination and there is no specific evidence that indicates the site is contaminated. Council’s Environmental Health Unit has assessed the application and considers the proposal to be satisfactory, subject to conditions.

(b) State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017

The site and neighbouring land parcels have recently been cleared of all vegetation to facilitate future residential development. As such, the SEPP does not apply.

(c) State Environmental Planning Policy (Coastal Management) 2018

The subject site is not identified as a coastal wetland and is not or land identified as “proximity area for coastal wetlands”.

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

An amended BASIX Certificate 975895M_04 dated 24 July 2019 with regard to the revised units’ numbers and dwelling mix has been submitted. The submitted BASIX certificate achieves target scores and is considered satisfactory. Conditions of Consent have been applied requiring adherence to the BASIX Certificate requirements.

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

The proposal is classified as a shop top housing development and SEPP 65 applies. A design verification statement signed by registered architect Antoine J. Saouma was submitted with the application.

SEPP 65 sets 9 design quality principles. The development has adequately addressed the principles in the following way:

Figure 6 – SEPP 65 Design Quality Principles Table

ADG design quality principle	Response
1. Context and neighbourhood character	The area is zoned to accommodate new development, including shop top housing that is a permitted type of development within the B2 zone. The existing character of the streetscape is in transition where existing dwelling houses are being replaced with higher densities development, such as shop top housing. The proposed development satisfies Holroyd LEP 2013 objectives in that it will provide residential development well integrated with the commercial uses. The siting of development has been appropriately designed to minimise any potential overshadowing and visual privacy impact to the adjoining properties by maintaining a buffer area at the rear and side boundaries for communal open space.
2. Built form and scale	The development application is seeking consent for a part 3, part 5 and part 6 storey development over two levels of basement car parking. The building has been designed to correspond with the existing landform. At grade communal open space will assist in softening the built form and minimise any potential overshadowing and visual privacy impact to the adjoining properties.
3. Density	The subject site is well located with respect to existing public transport and community facilities. The design of the development provides for appropriate separation between dwellings, supplemented by privacy treatment to balconies and windows where necessary.
4. Sustainability	A BASIX Certificate and relevant reports have been submitted with the development application. The certificates require sustainable development features to be installed into the development. The proposal will incorporate features relating to ESD in the design and construction of the development inclusive of water efficient fixtures and energy saving devices.
5. Landscape	Compliant landscape area has been provided, which will provide appropriate level of amenity to the resident and consistent with the environmental surrounds of the subject site.
6. Amenity	The proposal will deliver sufficient amenity to residents of the building. The proposal generally achieves compliance with the ADG and is considered to provide an appropriate level of amenity for future residents. Suitable access is provided to all parts of the building, through the efficient use of lift to access all levels.
7. Safety	Suitable and secure access is provided to all parts of the building, through the efficient use of lift to access all levels.
8. Housing diversity and social interaction	The apartment mix is considered to be satisfactory. The specifics of the building are:- · 4 x 1 bedroom units (14.3%); · 20 x 2 bedroom units (71.4%); and · 4 x 3 bedroom units (14.2%) The number of adaptable units proposed is considered satisfactory with the provision of associated accessible car spaces.
9. Aesthetics	The proposed development has an attractive contemporary appearance and utilises building elements that provide individuality to the development without compromising the streetscape or detracting from the appearance of existing surrounding development, subject to condition with regard to provision of light weight material for the upper floors (above 3 storeys) in lieu of the solid brick cladding of the external façade to provide articulation to the street frontage.

Pursuant to clause 28(2)(c) of SEPP 65, a consent authority must consider the provisions of the Apartment Design Guide (ADG) in the assessment of a residential flat development. A comprehensive assessment against the Apartment Design Guide (ADG) controls is provided at Attachment 1.

The proposal involves the following non-compliances with the ADG controls.

No.

Control

Comments

Compliance

Visual Privacy

3F-1

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:

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.

The proposal generally complies with the building separation requirements.

However, for level 5 (i.e; 6 storey) the following is provided:

Level 5 communal open space:

9m is required

Roof top communal open space is provided on Level 5.

Min. 4.5m provided for roof top communal area along the eastern and western boundaries.

Considered acceptable, subject to recommended condition of consent for the provision of additional planter boxes to ensure privacy and amenity of the adjoining neighbours is maintained.

(f) 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 and TransGrid for comment, who raised no objections, subject to conditions.

(g) Statement Environmental Planning Policy No 19 - Bushland in Urban Areas

The proposal does not propose to disturb bushland zoned or reserved for public open space.

(h) 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.

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

The proposed development is defined as a ‘shop top housing’ under the provisions of Holroyd Local Environmental Plan (LEP) 2013. Shop top housing is a permissible land use with consent under the B2 – Local Centre zoning applying to the land under Holroyd LEP 2013.

The proposal seeks a variation to Clause 4.3 – Height of Buildings that stipulates that the height of building is not to exceed 17m on the subject site. The height control of the subject site is split between 17m (at the front) and 10m (at the rear). The proposal complies with the 10m height standard at the rear; however, seeks a variation to a section of the front portion of the development.

The proposed building has an overall height of 18.8m (RL49.60) to the parapet of upper floor habitable spaces and an overall height of 19.4m (RL50.20) to the lift overrun. The proposal breaches the maximum overall height by 1.4m representing a maximum variation of 14%.

Figure 8, 9 & 10 – 3D Height Plan and Sections 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. 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 and recent case law in RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130, 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?

Applicant’s justification:

The proposal ensures that the desired mixed-use nature of the zone is augmented with the proposal providing additional retail floor space and residential housing types to augment the existing housing stock within the Wentworthville Town Centre whilst also aiming to set the tone and scale for comparable future developments within the locality.

In addition, the proposal will provide a strong and identifiable built form that will firmly pronounce this strategic gateway entrance point to the Wentworthville Town Centre for visitors to the area and for those travelling along Pritchard Street. Therefore, the proposed design concept with a four storey appearance will provide a built form that is consistent with the permitted scale of development surrounding the subject site and will incorporate a strong and identifiable building line.

Planner’s Comment:

Shop top housing development is a permitted land use and the locality is undergoing a transition particularly to support the increasing demand of housing within the close proximity of a public transport hub and commercial centre. The proposed development is considered to be consistent with the objectives of the B2- Local Centre zone.

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

Applicant’s justification:

The current development proposal is consistent with the underlying intent of the control based on the following key points:

· The overall height of the development presents as a compatible form of development to the anticipated high density residential development that are emerging in the locality, noting that the emerging character is for 6 storey shop top housing developments. The upper levels of the proposal are recessed behind the main building alignment to downplay visual dominance as viewed from the public domain and adjoining residential properties.

· The proportion of the building that protrudes above the 17m height limit contains limited habitable floor space and presents with a dominant 4 storey building design, reinforcing that the breach to the height standard does not result in the development representing an overdevelopment of the site but rather a suitable contextual response to the locational characteristics on the site in order to achieve a suitable ground floor outcome with sufficient amenity for the apartments at this level.

· The proposed development incorporates a complying floor space ratio as per the provisions of the HLEP 2013, which will ensure that the scale of the proposed development will be appropriate and will be visually consistent with the permitted building height with the upper levels recessed and designed using a lighter design style to ensure a positive streetscape presentation.

· The additional height does not generate any additional amenity impacts given the location of the site and the surrounding site context.

· The proposal has been carefully designed to ensure that no adverse visual or acoustic amenity impacts will be created by the proposed building height along site boundaries, as the upper levels are substantially recessed behind the building perimeter.

· The proposed articulation of the built form will ensure that the additional building height will not be discernibly noticeable from street level and that the proposed development will provide a strong and identifiable building line that will pronounce the site’s prominent and strategic gateway entry location at the edge of the Wentworthville Town Centre.

· The proposal provides for a better planning outcome as the same density of apartments could be achieved in a building that is squashed into 5 levels of development with a bigger floor plate that would be less articulated and would have more single aspect south facing apartments. Therefore, the response has been to maximise the amenity of apartments.

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

· The area has been identified as part of the Wentworthville Revitalisation Strategy as being suitable for containing increased density and height. The Wentworthville Centre Urban Design and Built Form Modelling prepared by Architectus indicates that the site is suitable for heights of up to 8 storeys fronting Pritchard Street East. This 6 storey building is compatible with the likely future character that will emerge as this revitalisation strategy progresses.

· The proposal will not unreasonably impact on the significance of the heritage item having regard to the detail in the submitted HIS.

· By providing additional building height does not substantially contain habitable floor space. The additional building height is a factor of the generous floor to ceiling heights that are required as Council mandates the provision of ground floor commercial/retail floor space. This results in the floor to ceiling height at the ground level being 3.7m and the first floor is afforded a 3.5m floor to ceiling height.

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 minor 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 existing and desired future character of the locality. The proposal is compliant with the maximum FSR standard, deep soil zone and communal open space requirement. The proposal is considered to be of an appropriate bulk, scale and height for the subject site which has been amended to address concerns raised by Council in relation to the split height limits and provision of terraced built form to provide an appropriate transition with the adjoining low density residential zone at the rear.

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 changing streetscape that is anticipated for the immediate area. Given that the proposed development responds to the site and does so without compromising relationships with adjoining developments, the proposal is considered to be consistent with the objectives of height requirements and development within the B2 zone.

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

Applicant’s justification:

In accordance with the provisions of this clause it is considered that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case as the underlying objectives of the control are achieved.

Planner’s comment:

Council Officers are satisfied that the proposed variation has been appropriately justified and can be supported in this instance. The height breach is limited to an overall building height of RL 49.60 to the fifth level habitable floor, and height of RL 50.20 for the top of the lift core. The additional height of the fifth level/sixth storey will not be visually distracting from the adjacent streets and properties noting the recessed upper levels. The departure sought is considered to be modest and does not unreasonably impact on adjoining properties.

The height breach is primarily related to the front section of the building that falls within the 17m height limit, thus representing a smaller habitable floor plate on the fifth level (the subject of noncompliance). It is noted that the gross floor area of the two units on this floor equates to approximately 156m². A similar density could have been provided on the immediate lower level (fourth level/fifth storey) by using the roof along the side boundaries (refer to the figure below) which equates to an area of approximately 139m², thereby reducing the overall building height by providing a larger floor plate of level 4. However, this would not have been a desirable planning outcome, noting it would compromise the amenity of the residents and reduce the overall visual relief by providing minimal articulation along the sides of the upper floor levels.

Further, the additional height does not result in the appearance of bulk when viewed from the existing streetscape, does not result in additional overshadowing to the adjoining properties because of the appropriate separation and staggered built form and would not impinge on the desired future character of the area. It is considered, therefore, that the non-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?

The unique circumstances of the case are considered to warrant support of the departure. Given that the proposed development responds to the site and does so without unduly compromising relationships with adjoining development, and does not unduly compromise other relevant controls, the proposal is considered to be consistent with the objectives of building height, and development within the B2 zone. In this regard, the exception is well founded and can be supported.

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 the 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.

By way of reference only, it is noted that under the draft Wentworthville Centre Revitalisation Planning Proposal, the subject area is being identified for an increased building height to 23m (compared to the current 17m) and FSR of 2.2:1 (current 2:1). The planning proposal was exhibited in the middle of the year, with a further report to be provided to Council.

An assessment against all the relevant LEP provisions is provided at Attachment 2.

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

There are no draft SEPPs applicable to the proposed development.

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

(a) Holroyd Development Control Plan 2013

HDCP 2013 contains general controls which relate to all developments under Part A, and Residential Controls under Part B.

A comprehensive HDCP compliance table is attached to this report at Attachment 3. A summary of the DCP non-compliances is provided in the following table.

Control

Provided

Complies (Yes/No)

All floors >3 storeys to be setback 3m.

Level 3 (4^th storey) = A varying setback from 0 to 3m provided.

Level 4 (5^th storey) and level 5 (6^th storey) = A varying setback from 3 to 5.2m provided.

A 3 storey street wall has not been provided for level 3. However, this is considered satisfactory, subject to imposition of condition with regard to provision of lightweight materials/finishes for level 3 and above to ensure satisfactory articulation and visual relief is presented to street.

Levels 4 and 5 are provided with a 3m setback.

No – Acceptable in this instance.

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 s 4.15(1)(a)(iiia))

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

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

Pursuant to clause 92 of the Regulation, the provisions of AS 2601 must be considered in the case of a development application for the demolition of a building. Standard conditions are included in the draft determination to require the proposed demolition works to be carried out in accordance with AS 2601.

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

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 (EP&A Act s4.15 (1)(c))

The site is considered suitable for the proposed development.

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 Part E - Public Participation of HDCP 2013, the proposal was publicly notified for a period of 21 days from 9 January 2019 to 30 January 2019. As a result of the notification, no submission was received. Amended plans submitted did not warrant re-notification of the proposal.

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. A condition is imposed requiring the payment of contributions.

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

· 4 x 1-bedroom dwellings = $35,060

· 20 x 2-bedroom dwellings = $296,440

· 4 x 3 bedroom dwellings = 40,000

· 220 m² of non-residential development = $6,820

The required Section 7.11 contribution payable for the proposal is = $378,320.00

Note: This includes credit for the existing 2 x 3-bedroom dwellings.

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 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 proposed development has been assessed in accordance with the relevant requirements of the Environmental Planning and Assessment Act 1979, State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development, 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:

1. That the Local Planning Panel approve the variation to the Development Standard relating to building height as contained within Clause 4.3 of the Holroyd Local Environmental Plan 2013 as the applicant’s Clause 4.6 objection has adequately addressed the matters required to be demonstrated by Clause 4.6 (3) and the development will be in the public interest as it is consistent with the objectives of the Height Standard and the objectives of the B2 – Local Centre zone.

2. Development Application 2018/454/1 for demolition of existing structures and construction of part 3, part 5 and part 6 shop top housing development comprising a commercial tenancy at ground floor level, 28 residential units above 2 levels of basement carpark accommodating 55 car parking spaces and 1 car wash bay be Approved via Deferred Commencement, subject to the attached conditions, provided at Attachment 4.

3. The applicant in respect to the application be notified of the determination of the application.

Attachments

1. ADG Compliance Table ⇩

2. HLEP 2013 Compliance Table ⇩

3. HDCP 2013 Compliance Table ⇩

4. Draft Notice of Determination ⇩

5. Architectural Plans ⇩

6. Shadow Diagrams ⇩

7. Clause 4.6 Variation Request to Building Height ⇩

8. Locality Map ⇩

Cumberland Local Planning Panel Meeting

9 October 2019

Item No: LPP066/19

Development Application - 96 Oramzi Road, Girraween

Responsible Division: Environment & Planning

Officer: Executive Manager Development and Building

File Number: DA 2018/185/1

Application lodged	4 June 2019
Applicant	Yousif Al Salimy
Owner	Greenrest Pty Ltd & Bluerest Pty Ltd & LCKL Management Pty Ltd
Application No.	DA 2019/193
Description of Land	96 Oramzi Road Girraween, Lot 83, DP 8768
Proposed Development (as amended)	Demolition of existing structures, construction of a Part 2, Part 3 storey boarding house with undercroft carparking, accommodating 20 single rooms, 9 double rooms, managers accommodation, totalling 30 rooms 15 carparking spaces and 6 motorcycle spaces under Affordable Rental Housing SEPP 2009
Site Area	1226m²
Zoning	R3 – Medium Density Residential
Disclosure of political donations and gifts	Nil disclosure
Heritage	N/A
Principal Development Standards	FSR – 0.7:1 Height of Building - 9m
Issues	o Incompatibility with the local character o Excessive building height o HDCP 2013 non-compliances o Inadequate flood information o Inadequate on-site waste management o 95 Public submissions, including 1 petition with 213 signatures

Summary:

1. Development Application No. 2019/193 was received on 4 June 2019 for the demolition of existing structures, construction of a part 2, part 3 storey boarding house with undercroft carparking, accommodating 20 single rooms, 9 double rooms, manager’s accommodation, totalling 30 rooms, 15 carparking spaces and 6 motorcycle spaces, for 38 lodgers plus 1 manager under Affordable Rental Housing SEPP 2009 at 96 Oramzi Road, Girraween.

2. The application was publicly notified to occupants and owners of the adjoining properties for a period of 14 days between 3 July 2019 and 17 July 2019. In response, 95 submissions including 1 petition with 213 signatures were received.

3. Due to the large volume of public interest in the application, a public information session was held on 2 September 2019.

4. Correspondence was sent to the applicant on 6 September 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 character incompatibility, excessive height, insufficient clause 4.6 variation request, poor safety and security, visual privacy impacts, acoustic impacts, non-complaint building design, inadequate flood study model, inadequate on-site vehicle manoeuvring, BCA non-compliances and insufficient on-site waste management.

5. No response has been received from the applicant, addressing Council’s request to withdraw.

6. The proposal involves the following numerical non-compliances which are not considered supportable as discussed elsewhere in this report:

Control	Required	Provided	% variation
9m building height (HLEP)	Maximum 9m	9.5m	5.6%
Side setback (HDCP)	Minimum 0.9m	Nil provided to western side property boundary	100%
No living area openings within 3m of a boundary (HDCP)	Minimum 3m	Common room living area opening along the eastern elevation is setback 2.6m from property boundary	13.3%
2 stories and 9m building height (HDCP)	Maximum 2 stories and 9m building height	3 story building with a 9.5m building height	50%

7. The application is recommended for refusal for the reasons provided in the draft determination.

8. The application is referred to the Panel for determination due to the number of public submissions received.

Report:

Subject Site And Surrounding Area

The subject site is known as 96 Oramzi Road, Girraween. The legal description of the site is lot 83, DP 8768. The site is zoned R3 – Medium Density Residential under the provisions of HLEP 2013 (Holroyd Local Environmental Plan 2013), as are all surrounding sites. The site has frontage of 20.115m to Oramzi Road, and total area of 1226m2.

The site slopes from the front to the rear by approximately 2.7m. There are two existing large trees within the rear yard and one large street tree in front of the site. One tree within the rear yard and one street tree is proposed to be removed as part of the subject application.

The site currently contains a single storey dwelling house and an associated outbuilding. All existing structures are proposed to be demolished as part of the development. Surrounding sites are a mixture of one and two storey dwellings. On the opposite side of Oramzi Road there is currently a Council Reserve, Karate Hall and a mixture of one and two storey dwellings.

Figure 1 – Zoning map of subject site (Source: Cumberland Council)

Figure 2 – Aerial view of subject site (Source: Cumberland Council)

Figure 3 – Street view of subject site (Source: Google Maps)

Description of The Proposed Development

The proposal is for demolition of existing structures, construction of a part 2, part 3 storey boarding house with undercroft carparking, accommodating 20 single rooms, 9 double rooms, 1 managers accommodation, for 38 lodgers plus 1 manager, 15 carparking spaces and 6 motorcycle spaces under Affordable Rental Housing SEPP 2009.

History

Date	Action
4 June 2019	Subject application lodged with Council.
20 June 2019	Subject application referred to Council’s internal departments and to NSW Police for review.
3 to 17 July 2019	Subject application publicly notified. A total of 95 submissions including 1 petition with 213 signatures, were received.
2 September 2019	Due to the high volume of public interest, a public information session was held at Council Chambers, inviting residents and objectors to voice their concerns and receive more information about the proposed development.
6 September 2019	Correspondence sent to the applicant advising that the proposal could not be supported, and inviting withdrawal of the application. This correspondence set out Council’s concerns with the application in detail.
9 October 2019	Referred to CLPP for determination.

· A deferred Commencement Consent was granted by Council on the 23 September 2016 for DA 2015/482 for construction of a multi dwelling housing development comprising 7 units over basement parking accommodating 12 car parking spaces, at the subject land. Schedule ‘A’ was satisfied on 10 May 2017 and the consent become active. The consent was not acted.

· A Pre-DA meeting was held on 24 October 2018 for a part 2, part 3 storey 28 rooms boarding house for 38 lodgers and managers accommodation over 1 level of basement for 16 car parking spaces and 6 motorcycles and 6 bicycles spaces under ARH SEPP 2009. The Pre-DA notes provided following the meeting highlighted significant non-compliances with ARH SEPP 2009, HLEP 2013 and HDCP 2013 and identified that the site was not suitable for that scale of development.

Applicant’s Supporting Statement

The applicant provided a Statement of Environmental Effects prepared by Andrew Robinson Planning Services Pty LTD dated 30 April 2019 in support of the application.

Contact With Relevant Parties

The assessing officer has undertaken an inspection of the subject site on the 3 July 2019 and has been in regular contact with the applicant throughout the assessment process.

Internal Referrals

Development Engineering

The development application was referred to Council’s Development Engineer for comment. The response received 10 July 2019 advised that the submitted flood study model was not satisfactory, however, the proposed stormwater concept design is acceptable.

Traffic Engineering

The application was referred to Council’s Traffic Engineer for comment. The response received 27 June 2019 indicates that the proposal has not submitted adequate information to assess on-site vehicle manoeuvring.

Environmental Health

The development application was referred to Council’s Environmental Health Officer for comment. The response received on 4 July 2019 indicates that the acoustic report submitted with the application was prepared in accordance with the NSW EPA Noise Policy for Industry. Subject to compliance with the recommendations of the acoustic report, and Council’s standard consent conditions, the EHO was satisfied that the proposal would perform adequately in terms of its impacts on surrounding properties during the use phases of the development.

Landscape and Tree Management

The application was referred to Council’s Landscape and Tree Management Officer for comment. Response received 8 July 2019 indicates that the proposed tree removal as detailed in the submitted Arborist Report is supported, as well as support the proposed landscape plan.

Waste Management

The development application was referred to Council’s Waste Management Officer for comment. The response received 28 August 2019 indicates that the proposed onsite waste management arrangements are not practical. Council’s Waste Department did not support the proposal in its current form.

Building Services Unit

The development application was referred to Council’s Building Services Unit for comment. The response received 5 August 2019 indicates that the proposal does not comply with parts of the National Construction Code.

External Referrals

NSW Police

The application was referred to NSW Police for a Safer by Design Evaluation. The response dated 2 July 2019 indicates that NSW Police have no objections and that the proposal rated ‘Low Risk’ with no further comments being made regarding associated safety recommendations.

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 the consent authority 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?
1. Does the application involve re-development of the site or a change of land use?
In 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 subject to contamination. There is no evidence available to suggest that either the subject site, or any adjacent site, has ever been used for a potentially contaminating activity. No further investigation is considered necessary in the circumstances. It is noted that the application was accompanied with a Preliminary Site Investigation Report, which has been reviewed by Council’s Environmental Heath Unit, who have recommended imposition of conditions.

(b) State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017

The proposal does not exceed the biodiversity offsets scheme threshold. Therefore, the proposed vegetation removal is considered acceptable. Refer to the DCP compliance table for further comment.

(c) State Environmental Planning Policy (Coastal Management) 2018

The subject site is not identified as a coastal wetland and is not or land identified as “proximity area for coastal wetlands”.

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

BASIX Certificate number 1006932M dated 24 April 2019 prepared by Eco Certificates Pty Ltd was submitted with the application. The project achieves the target scores required for water and energy and is consistent with the architectural plans.

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

The proposed development is defined as a ‘boarding house’ under the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009. The non-compliances with the ARH SEPP 2009 have been detailed in the following table.

Clause	Yes	No	N/A	Comment
Part 2 New Affordable Rental Housing - Division 3 Boarding Houses
29 Standards that cannot be used to refuse consent (2) A consent authority must not refuse consent to development to which this Division applies on any of the following grounds:
building height if the building height of all proposed buildings is not more than the maximum building height permitted under the environmental instrument for any building on the land				The proposed building height exceeds the maximum permitted 9 metres permitted under HELP 2013. A total building height of 9.5 metres has been proposed. This is included as a reason for refusal in the draft determination.
30A Character of local area Consent must not be granted unless the proposal is consistent with the character of the local area.				The proposal is not consistent with the character of the local area and this is included as a reason for refusal in the draft determination.

Character of the Local Area

A consent authority must not consent to development for the purpose of a boarding house unless it has taken into consideration whether the design of the development is compatible with the character of the local area.

The ARH SEPP 2009 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 – Identify 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’

The local area is identified in Figure 4 below as the area within the yellow lines.

Step 2 – Identify the character of the ‘local area’.

All sites within the local area are zoned R3 – Medium Density Residential pursuant to HLEP 2013.

Whilst there are a number of one and two storey dwellings within the locality, the area is transitioning to medium density developments in accordance with the planning controls that currently apply. The area is subject to a maximum height limit of 9m and maximum floor space ratio (FSR) of 0.7:1. The emerging character of the area is generally that of two storey dual occupancy developments and single / two storey multi dwelling developments.

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

The following questions assist in determining whether a building is compatible with its surroundings:

· 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 development poses unacceptable visual and acoustic privacy impacts to adjoining sites. Together, the visual and acoustic privacy impacts in association with the 3 storey built form and nil side setback result in unacceptable impacts for occupants of the existing adjoining buildings and their future development potential.

· 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 maximum building height of 9m. Dwelling and dual occupancy developments are permitted to have a maximum of 2 storeys, whilst multi dwelling housing developments are permitted to be 2 storeys for the first 20m and then required to step down to 1 storey to the rear. Whilst the proposal is not for multi dwelling housing, the controls in the DCP for multi dwelling housing are helpful in establishing the desired future built form for the area.

The surrounding dwellings do not protrude over the 9m building height limit, and the majority (including all the buildings within the visual catchment of the subject site) have a maximum of 2 storeys. The proposal is part 2 / part 3 storeys, with a part of building exceeding of 9.5m height standard. This building design is not in keeping with the predominantly low to medium density character of the residential development in the immediate vicinity of the site.

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.

(f) Holroyd Local Environmental Plan 2013

HLEP 2013 applies to the proposed development. The proposed development is permitted with consent in the R3 – Medium Density Residential zone that applies to the land. The non-compliances with HELP 2013 have been detailed in the following table:

Clause

Yes

N/A

Comment

4.3 Height of buildings

(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,

(2) The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map.

The Height of Buildings Map indicates a maximum height of 9m for this site.

The proposed development has a height of 9.5m which does not comply with the height standard.

4.6 Exception of development standards

(2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument.

The application accompanies a Clause 4.6 variation request, seeking variation to the maximum building height limit of 9 m. This variation request has not been supported by Council as there are no identifiable planning gain and the variation is not considered in the public standard. The height breach is included in the draft reasons for refusal.

6.4 Flood planning

This clause applies to land at or below the flood planning level.

The subject site is located below the flood planning level. On the basis of the information that was submitted with the application, Council is not satisfied that the proposal will not adversely affect local flood behaviour.

4.6 Exception of development standards

The proposal involves a non-compliance with the Height of Buildings standard. The proposal has a height of 9.5 m (RL 50 – NGL 40.5) at the central portion of the building, inclusive of the lift overrun and building roof, where the maximum height permitted is 9 m. This represents a 5.6% departure from the standard.

The applicant submitted a written request to vary the standard pursuant to clause 4.6 of the LEP. The relevant provisions of clause 4.6 are considered in the following table.

4.6 Exceptions to development standards	Comment
2. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.	The height of buildings development standard is not expressly excluded from the operation of clause 4.6 and accordingly, consent may be granted to the application despite the variation.
3. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: 4. (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) That there are sufficient environmental planning grounds to justify contravening the development standard.	As stated above, the proposed development contravenes the height of buildings development standard. A written request to vary the standard was provided by the applicant, and this request seeks to justify the contravention. The applicant’s request includes the following commentary: · “the extent of the non-compliance will not result in any adverse impacts on the adjoining land uses with respect to overshadowing, loss of privacy, inappropriate scale etc. and the proposed scale and massing of the building is consistent with the existing and desired future character of the locality” · “the non-compliance relates to the lift overrun and small portion of the roof and on the north-eastern side of the building and does not seek to increase the number of storeys or density of the development. As such, there is no nexus between the height variation and the overall land use intensity” The applicant contends that compliance with the standard is unreasonable and unnecessary as the proposal satisfies the objectives of the standard, notwithstanding the non-compliance. However, Council disagrees with the above arguments due to the following reasons: · The proposal has multiple privacy impacts on adjoining sites and the proposal is not consistent with the existing desired future character of the R3 locality. · The proposal does not comply with maximum number of storeys permitted within the R3 zone, as required by HDCP 2013, resulting in the height non-compliance which contributes to an over development of the site. The applicant has not demonstrated that there are sufficient environmental planning grounds to justify contravening the standard as follows: · The proposal does not maintain an appropriate building scale for the location as it is out of character to the locality and will have a negative relationship with adjoining neighbouring properties. · The proposal will have unacceptable visual privacy impacts on neighbouring properties
5. (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) 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, and 6.	The Panel would not be satisfied that: · the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3) as detailed above, or i) · that the proposed development is in the public interest as it is inconsistent with the objectives of the height standard and the objectives of the R3 zone as detailed below: ii) Objectives of the height standard 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. The proposal does not satisfy the objectives of the height standard as visual privacy impacts for adjoining properties is not minimised. The proposal does not satisfy the objectives of the zone as the proposed development is not consistent with the landform and surrounding developments. The Panel would not be satisfied that the proposal is in the public interest, as it does not satisfy the objectives of the standard, and the objectives of the R3 zone.
7. (b) the concurrence of the Secretary has been obtained.	The concurrence of the Secretary can be assumed in the present circumstances as the consent authority is a Local Planning Panel.

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

The proposed development is not affected by any Draft Environmental Planning Instruments.

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

The Holroyd Development Control Plan (HDCP) 2013 provides guidance for the design and operation of development to achieve the aims and objectives of the HLEP 2013.

A comprehensive assessment and compliance table is provided at Attachment 3. The following table highlights the DCP non-compliances, most of which are not considered supportable as detailed below:

No.		Clause		Comment	Yes	No	N/A
PART A – GENERAL CONTROLS
8		Flood Prone Land
		To provide prescriptive controls on the use and development of land subject to various flood risk exposures, which reflect the probability of the flood occurring and the potential hazard within different areas.		Insufficient information has been provided to determine the level of flood impact.
10		Safety and Security
		Design new development to reduce the attractiveness of crime by minimising, removing or concealing crime opportunities.	The proposed lower ground level and ground level have very limited street surveillance, resulting in poor site safety and security.
PART B – RESIDENTIAL CONTROLS
1.4		Visual Privacy
		To provide a high level of visual and acoustic privacy for residents and neighbours in dwellings and private open spaces	The proposed deign poses unacceptable visual privacy concerns to adjoining sites. There are inconsistencies between submitted documentation which do not allow for a proper acoustic assessment. These privacy and acoustic impacts are further discussed in attachment 3.
1.11	Vehicular Access and Driveways
	Council favours the use of a central under-building access with arrangement for cars to exit the property in a forward direction		Swept path diagrams have not been submitted to Council to demonstrate if forward vehicle manoeuvring can be achieved.
5.0	Multi Dwelling Housing Whilst there are no specific DCP controls for boarding houses in HDCP 2013, the controls for Multi Dwelling Housing in Part B are relevant to the assessment in that they establish the desired future character of the area with regard to building form and the relationship of buildings to the site. Assessment of these controls is detailed in Attachment 3.

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

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

The regulations do not prescribe any relevant matters for consideration, other than the provisions of AS2601. If consent were to be granted, standard conditions could be imposed to require demolition to be carried out in accordance with AS 2601.

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

It is considered that the proposed development will have adverse environmental impacts in the locality, having regard to the excessive building height, visual and acoustic privacy impacts, inadequate setbacks, and inappropriate built form. This is included as a reason for refusal in the draft determination.

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

The subject site is not considered suitable for the proposed development, having regard to the excessive building height, visual and acoustic privacy impacts and inadequate setbacks impacts as detailed elsewhere in the report. This is included as a reason for refusal in the draft determination.

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 Part E of the HDCP 2013, the proposal was publicly notified for a period of 14 days between 3 July 2019 and 17 July 2019. The notification generated 95 submissions, including a petition with 213 signatures, in respect of the proposal, with none disclosing a political donation or gift. The issues raised in the public submissions are addressed below:

Figure 5 – Submissions response table

Issue

Response

· Proposed height does not comply with the maximum 9 m building height limit

The proposed development is seeking a variation to maximum building height of 9 m. Council has not supported this variation request and this has been included in the draft reason for refusal.

· Proximity to local schools and childcare centres. Risk to children arising out of potential occupants and traffic.

· Safety concerns as site is located across from a community hall, park and karate centre where local children play

The proposed use is a permissible land use under ARH SEPP 2009 and within the R3 Medium Density Zone pursuant of HLEP 2013. There are no restrictions within the Environmental Planning and Assessment ACT 1979 (EPAA 1979), the ARH SEPP 2009, HLEP 2013 or other applicable legislation preventing boarding houses in close proximity of schools, childcare centres, community halls and parks.

8. Boarding house developments generally do not raise any particular safety concerns for pedestrians and neighbouring properties. The application was referred to NSW Police and their response indicates that NSW Police have no objections and that the proposal is rated as ‘Low Risk’ with no further comments being made regarding associated safety recommendations.

· Local schools are already overcrowded. This development will cause more pressure on the local catchment area.

This is not a matter of consideration under Section 4.15 of the EPAA 1979.

Flood Study determines

· that the pre-development and post-development flood levels are similar across the site. Further, the Flood Study report advises that level of the habitable area on the basement level must be set at RL41.2m AHD to provide a 500mm freeboard above the applicable 100-year ARI flood level of 40.50. The building designed for this level.

· The above statement ignores the basement considered as on piers and not slab on ground as proposed.

· In the event of a flood event, it is considered that the residents will not need to evacuate but will be able to seek refuge on the upper floor levels, above the PMF level.

· Considering managers resident and single boarder room proposed in basement and it may require evacuation and does not have direct access to road leading to higher risk to managers residents.

· Disable parking provided in basement

The site is flood affected. Council’s engineers have assessed the application and are not satisfied with the submitted flood study report. This has been addressed in Council’s draft reasons for refusal.

· Proposed underground OSD tanks – does Council support underground OSD tanks?

· Concerns raised regarding OSD accuracy of OSD calculations.

· Is there an existing stormwater easement on site? Will the site drain to the easement?

· How many development sites can tap into an existing stormwater easement? Is the existing pipe at the rear large enough to cater for this development?

Council’s engineers have confirmed that Council can accept below ground OSD systems if the site is affected by flooding. Council’s engineers have reviewed the OSD calculations and are satisfied that they are in accordance with Council’s policy.

As the site slopes towards the rear, Council’s engineers have confirmed that the site will drain to the existing 1.83m wide easement located at the rear of the site. Detailed design and calculations are required for the existing stormwater pipe capacity, which demonstrates that the Council pipe has sufficient capacity. If the DA were to be approved by Council this information would be imposed as a condition of consent, requiring the information prior to issue of any Construction Certificate.

· Privacy impacts from proposed development

· Proposed development can overlook adjoining neighbours private open space areas

During the assessment of the application Council’s officers identified potential privacy impacts to adjoining sites and these have been included in the draft reasons for refusal.

· Noise and acoustic impacts from proposed development

· How much lighting / noise will be produced from the development?

iii)

The application has been accompanied with an acoustic report which has been assessed by Council’s Environmental Health Unit, who have no objections regarding noise impacts during the use of the development, subject to conditions. The Plan of Management also sets out specific measures which ensure noise mitigation to adjoining sites is managed.

However, there are inconsistencies between the submitted acoustic report and Plan of Management. This has been addressed in Council’s draft reasons for refusal.

If the development were to be approved, conditions would be imposed on the consent requiring lighting to be accordance with the relevant Australian Standards.

· Girraween is residential area with young families, why is this quiet street selected for a boarding house?

· 30 units is unacceptable for a small residential block.

· Proposed development is out of character with the existing locality.

· Building is not as per bulk and scale of the locality

· Overdevelopment: the scale of this development is too large for the footprint of the land dimensions.

· Aesthetics: the building looks like a commercial office block, should be suitable into a commercial zone.

The proposed use is a permissible land use and the applicant is entitled to lodge a DA. However, during the assessment of the application, Council officers determined that the proposal in its current form is not suitable for the subject site, as the proposal is out of character with the existing locality. This has been included in the draft reasons for refusal.

· Does the character assessment consider the existing demographic within the area?

The character assessment as required under ARH SEPP 2009 only considers the character of the local area and the surrounding built forms.

· People staying in short-term motel style accommodation will be mainly transient people of varied life experiences, some of a conflicted nature.

· The boarding house will provide housing of single males especially and can expect people addicted to drugs / alcohol / smoke especially because of the physical fact of being alone.

The proposed use is permissible on the subject land and there are no legislative provisions for Council to reject a DA based on social classification of people who may live there.

· Does Council have any control over who can use / lease out rooms within the boarding house?

· How can the minimum short term stay of 3 months be policed?

· ‘House Rules’ are not clear in terms of character check and other aspects of people who will be given admission.

As a general comment, the operator of a boarding house is free to determine and decide on any future prospective lodgers.

The boarding house manager is required to police the minimum 3 month stay with future lodgers.

· Proposed boarding house will increase crime, drugs, alcohol and terrorism within the local area and effect safety of entire community.

· Aspect of trust will be seriously questioned if the boarding house development proceeds.

· Peace and wellbeing of the neighbours will be significantly affected by the proposed building.

9. The application was referred to NSW Police for a Safer by Design Evaluation. The response received indicates that NSW Police have no objections and that the proposal rated ‘Low Risk’ with no further comments being made regarding associated safety recommendations.

The Plan of Management (POM) submitted with the application specifies how the premises will operate and addresses residents’ behaviour, house rules, noise, contact details of the onsite manager and conflict resolution.

· Decrease in property values, rent and affordability

This is not matters for consideration in the evaluation of a development application pursuant to section 4.15 of the EPAA 1979.

· Who is this accommodation for? There is no University in Girraween for student type accommodation.

Whilst there are no set eligibility criteria for tenants, a boarding house is a form of affordable housing and can be suitable for 1 or 2 person households.

· The development will attract a different demographic to this family-friendly area. Development will compromise family safety within the Girraween area.

The development will provide accommodation for 1 or 2 person households. This is not considered to compromise the safety of family friendly area within Girraween.

· Increase to parking, traffic and pedestrians on the street

· Is there a requirement for the development to provide onsite visitor parking?

The application was accompanied with a Traffic Report prepared by Terraffic Pty Ltd. The Report concludes that:

· The proposed development will not have any noticeable or unacceptable effect on the road network serving the site in terms of road network capacity or traffic-related environmental effect.

The application was reviewed by Council’s Traffic Engineer who had no objections in relation to this matter.

The ARH SEPP 2009 requires each boarding room to provide 0.5 parking spaces per each boarding room. With 30 boarding rooms proposed (including managers room) a minimum of 15 parking spaces is to be provided on site. The proposal complies with this requirement. There is no requirement under ARH SEPP 2009 to provide visitors parking.

· If this development goes ahead creates undesirable precedent for the area

· The streetscape will be affected to the detriment of those living alongside by the proposed building

Council is not satisfied with development in its current form and therefore has recommended refusal.

· This is a quiet residential street with houses and units where people commute to work daily using the public transport and more than this they preferred a quiet living compare to the busy neighbouring suburbs

· Carinya Road which consists of residential duplexes or townhouses which are family orientated. Introduction of a boarding house is clear misfit. How can a 3 storey boarding house be permitted in this area be allowed when this area is designated as R3

Boarding houses are a permissible type of land use within the R3 land zone under HLEP 2013 and ARH SEPP 2009. However, Council is not satisfied with the proposal in its current form and therefore has recommended refusal of the application.

The 3 storey element has formed part of Council’s draft reasons for refusal.

· Council to consider low income suburbs are as a better place for Affordable Housing

· Introducing an ARH SEPP 2009 will attract low income owners to this specific area which creates social inequality.

· I fear that the building of an over-crowed guest house in Oramzi Road will be a retreat to the bad old days and therefore I object most strongly to this development.

Boarding houses are a permissible type of land use within the R3 zone under HLEP 2013 and ARH SEPP 2009.

The NSW State Government introduced the ARH SEPP 2009 to facilitate the provision of affordable rental housing. The proposal seeks to provide affordable housing in accordance with the requirements of the SEPP.

· If approved many families with kids will start moving away from this suburb.

· If this development gets approved then the whole area should be rezoned so all residents can get out.

This is not a matter for consideration under section 4.15 of the EPAA 1979.

· The proposed boarding house development site is not an ideal location as it is far from the nearest available train station

· The boarding home needs to be closer to shops and amenities

· Shopping centres are required to be a minimum 800m from the subject site. The proposal does not comply with this requirement.

· 2.7 Existing public transport

o Public transportation required for boarding house is 6:00AM to 21:00PM.

o Sydney trains network is about 900M away, stipulated at 800 meters

o Shopping centres are about 900M away, stipulated 800m

· Reference

Fact-sheet-sepp-affordable-rental-housing-boarding-houses-2019-02-28.pdf

Page 2

o Accessibility requirements for the R2 Low Density and equivalent zones: boarding houses are permissible in the R2 Low Density Residential zone in locations close to public transport services:

o (a) Sydney Region

· Within 800m walking distance of a railway station or a Sydney Ferries wharf; does not comply within 400m walking distance of a bus stop used regularly between 6am and 9pm Monday to Friday, and 8am to 6pm weekends. Does not comply.

· Bus timings are up to 7.22pm where it needs to be served up to 9pm

ARH SEPP 2009 does not require boarding houses located in the R3 – Medium Density Residential Zone to have any specific distances to train stations or shops.

Proposed boarding houses located in the R2 – Low Density Residential Zone require the site to be located within an ‘accessible area’. This is not the case for this subject application as the site is located within the R3 – Medium Density Residential Zone.

· Cumberland interim affordable housing policy dated July 2017 on page 4 under the paragraph requirement no. 2 “Short walking distance of rail stations and high frequency stops for buses that use dedicated bus routes. These locations will ensure good access to job opportunities and services for very low moderate income households without car dependency”

· The super seeding clause from SEP states that public transportation should be within 400 mts of the boarding house and hence we expect the bus to be serving during the time of 6 am to 21 pm at least with a frequency of 1 hour whereas bus route 705 the last starting time is 19.26 and expecting to finish much before 21.00 hours at cannot be used for this particular development. Train station is away by more than 400 mts from this development. Also mentioning Statement of Environment Effect document by client Andrew Robinson Planning Services PVT Limited on page 10 clause number 2.7. Titled Existing public transport.

The application has been proposed under the ARH SEPP 2009, not Cumberland Council’s Interim Affordable Housing Policy.

The ARH SEPP 2009 does not require boarding houses located in the R3 – Medium Density Residential Zone to have any specific distances to train stations or shops.

· Surrounding properties will be impacted by proposed depth of underground car park and only 1 entry and exit for car park

If this application were to be approved, Council would impose specific conditions of consent requiring all earthworks and excavation to be in accordance with the relevant Austrian Standards and BCA. This would be overseen by the appointed Principal Certifying Authority in charge of the building construction.

Swept path diagrams were not submitted which demonstrate vehicles can sufficiently pass one another at the top and bottom of the driveway. This has been included in the draft reasons for refusal.

· Old plans for shade diagrams used. 27C Carinya Road recently redeveloped as town houses

This is noted and has been included in Council’s draft reasons for refusal.

· Loss of existing native tree in proposed development

· Landscape plan has nominated certain trees which need to be protected. They may be in adjoining property and their roots may get escaped during to the excavation of basement leading to dead of such trees. We haven’t seen any documents of how trees will be protected or replaced.

The application was accompanied by an Arboricultural Assessment report and a landscape plan prepared by a qualified landscape architect. Council’s tree management officer has reviewed the application and has no objections to the proposed tree removal and tree retention. If the application was to be approved, conditions would be imposed on the consent ensuring the tree removal and tree protection is in accordance with relevant Australian Standards.

· Proposed boundary setbacks for a 5m high building is very short and unacceptable.

· What is the required rear setback? Should it be 30% of the site?

· Can anyone who puts a DA in also built to a zero lot boundary? Zero lot construction needs easement for maintenance?

Considering the controls detailed in HDCP 2013 for multi dwelling housing, a minimum 4m rear setback is required. The application proposes a minimum 6m setback to the rear property boundary. This is considered satisfactory.

Each DA submitted to Council is assessed on its own merits. Council has not supported the proposed nil setback to the western boundary and this has been included in the draft reasons for refusal.

The requirement for a 30% length of the site rear setback is required for dual occupancy developments only.

· Residents managers unit is not nominated and hence we cannot verify allocated POS

There is 1 allocated manager’s room on the lower ground floor. POS has been allocated for the manager and the lodgers, in accordance with the ARH SEPP 2009 requirements.

· Roof is flat and it should not be accessible and it should have a proper lock and key to further enhance privacy of neighbours

Plans do not detail any access to the roof.

· Communal room is not nominated

The communal room has been nominated on the lower ground floor.

· Residents manager unit is attached to carpark which is not allowed as per BCA, due to carbon monoxide emitted by cars, this may go into inhabited rooms and calls for health hazard to the occupants.

· There is no natural light in residential mangers room cannot be part of car park

The lower ground level is not a basement, rather an undercroft area. Along the northern and eastern elevations of the manager’s room, there are openings which allow for natural light and ventilation to be achieved. If this DA were to be approved, Council would impose conditions of consent requiring BCA compliance.

· Carpark slab is not showing any slop so we suspect it may lead to water logging within carparking, leading to health hazard like fungus developments, mosquito breading, which are all health hazards especially to residents manager unit

The lower ground level has been incorporated into the onsite stormwater drainage plan, which details sufficient drainage. This has been reviewed by Council’s Development Engineering Department, who have no objections.

· Geo-technical report has suggested the slop of the batter has to be maintained so that the neighbouring properties are not damaged.

The application proposes minimal cut and fill outside the building envelope, complaint with HDCP 2013.

· Concerns for noise during construction period

If the application were to be approved, Council would impose conditions of consent requiring all construction to be in accordance with the relevant Australian Standards and the BCA. This would be overseen by the appointed Principal Certifying Authority.

· The proposal intensities several areas where the Deemed-to-Satisfy provisions of the BCA are not satisfied.

This has been assessed and formed part of the draft reasons for refusal.

· As a Class 3 building (accommodates more than 12 people and is greater than 300m2 in area), the proposed development must meet the requirements of Section J of the BCA.

· BASIX is not an acceptable standard anymore

A Class 3 building still needs to comply with the BASIX requirements for water and energy. The current BASIX Certificate submitted with the application is satisfactory in this regard. The provisions of Section J of the BCA will be assessed at Construction Certificate stage, if the application were to be approved by Council.

· What members will be elected for the CLPP meeting?

· Can residents speak to CLPP?

CLPP members are elected on a rotational basis.

Any person who made a submission will be notified about the CLPP meeting. From here, they can register to address and speak to the Panel members during the public session of the meeting.

· What happens once decisions is received from applicant, will community be involved again?

At any stage of the DA assessment process, if amended plans are received and they trigger re-notification in accordance with Council’s policy, then residents and objectors will be re-notified.

Amended plans were not received in this case and, therefore, all residents and objectors will be notified about the CLPP meeting. From here, they can register to address and speak to the Panel members during the public session of the meeting.

· Has fire safety been considered?

If the application is to be approved, fire safety will form part of the Construction Certificate.

· Are there any other similar sites and developments like this is in the Cumberland area?

There are many sites within Cumberland Local Government area with approved boarding houses.

· What are the controls for floor space and site coverage? Does the proposal comply with these requirements?

· Is the car parking included in the floor space ratio calculation?

The maximum permitted FSR (floor space ratio) for the site is 0.7:1. The development complies with this control. Car parking to meet the consent authority’s requirements is not included in the FSR.

There are no specific controls for site coverage for ‘multi dwelling housing’ within the R3 zone. Although the DA is not for multi dwelling housing, these controls are best used to assess the subject application to form a better character consistency within the immediate area.

· There should be set controls for boarding houses in Council DCP.

Not a matter for consideration under Section 4.15 of the Act.

· Is there a solar access requirement for each boarding room?

· It does not supply any solar Access to all southern rooms.

· It reduces solar access to living areas of neighbours to 3 hours only

· Loss of sunlight which will have an impact on adjacent properties health living, veg gardens and nature

· Loss of solar energy and ventilation for all adjacent properties

The ARH SEPP does not have specific controls requiring each boarding room to receive solar access. ARH SEPP requires the common room to receive a minimum of 3 hours of direct sunlight between 9am and 3pm in mid-winter. The application complies with the requirement.

Council’s controls require all adjoining properties to receive 3 hours of solar access between 9am and 4pm, during mid-winter. The proposal complies with this requirement.

There are no solar panels located on the roofs of any immediate adjoining dwellings. The proposal will not affect ventilation of existing neighbouring dwellings.

· Inconsistencies with the submitted flood report and geotechnical report, with regards to the type and thickness of slab.

This is noted. However, if the DA were to be approved, Council would impose specific conditions of consent requiring the slab to comply with the relevant Australian Standards and this would also form part of the Construction Certificate.

· How long till this DA is determined?

This DA will be determined on the 9 October 2019, unless further deferred by the Panel.

· Can the applicant challenge Council’s final decision?

· Have any boarding houses gone to Local Environmental Court before?

Any applicant has the right to appeal Council’s final decision with the Land and Environmental Court (LEC) within 6 months from date of determination.

There are instances where boarding house applications have been subject to court appeals in the LEC.

· Does this application need to be reviewed by Council’s design excellence panel?

No, the design excellence panel is for developments which are 25m or more in building height.

· Why was the application notified during the school holidays?

Council has a legal requirement to notify all applications in a timely manner and in accordance with Council’s Notification Policy. The application was notified in accordance with the next available calendar dates.

· 3.11 Construction Phase

This does not include the construction Management Plan based on site being Overland flood site.

· 3.12 Erosion & Sediment Control Management

This does not include the Erosion & Sediment control management Plan based on site being Overland flood site.

If this application was to be approved, Council would impose specific conditions on the consent requiring all construction and sediment control to be in accordance with the relevant Australian Standards and Building Code of Australia. This would be overseen by the appointed Principal Certifying Authority for the building.

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

In view of the foregoing analysis it is considered that the approval of the development application would be contrary to the public interest.

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

The proposed development attracts the payment of contributions in accordance with Holroyd Section 94 Contributions Plan 2013.

In accordance with the currently indexed rates for the Toongabbie centre contribution area, the following contributions apply to the proposal:

· 30 boarding rooms (6661 x 30) - $199,830

· Total = $199,830

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.

Disclosure of Political Donations And Gifts

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, ARH SEPP 2009, HLEP 2013 and HDCP 2013. The proposal is incompatible with the character of the local area, proposes an excessive building height, and has many departures from HDCP 2013. The proposed development is part 3 storeys and this is contrary to Council’s controls within the R3 Medium Density Residential Zone and, therefore, the application is recommended to be refused. Whilst a boarding house is permitted with consent in the R3 zone, the design of the proposed development does not respond appropriately to the site, is considered to be an over development of the site and would have unacceptable impacts on the streetscape and on surrounding properties.

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 the Local Planning Panel does not approve the variation to the Development Standard relating to building height as contained within Clause 4.3 of the Holroyd Local Environmental Plan 2013, as the applicant’s Clause 4.6 objection has not adequately addressed the matters required to be demonstrated by Clause 4.6 (3) and the development will not be in the public interest because it is inconsistent with the objectives of the Height Standard.

2. That Development Application No. 2019/193 for demolition of existing structures, construction of a Part 2, Part 3 storey boarding house with undercroft car parking, accommodating 20 single rooms, 9 double rooms, managers accommodation, 15 car parking spaces and 6 motorcycle spaces under Affordable Rental Housing SEPP 2009 on land at 96 Oramzi Road, Girraween be refused for the reasons listed in the draft determination.

3. That those persons who lodged a submission in respect of the application be notified of the determination of the application.

Attachments

1. ARH SEPP 2009 Compliance Table ⇩