Agenda of Cumberland Local Planning Panel Meeting

Cumberland Local Planning Panel Meeting

10 February 2021

Item No: LPP001/21

Modification Application for 15 Hyacinth Street, Greystanes

Responsible Division: Environment & Planning

Officer: Executive Manager Development and Building

File Number: MOD2020/0332

Application lodged	29 September 2020
Applicant	Baini Design
Owner	Ishak Group Holdings Pty Ltd
Application No.	MOD2020/0332
Description of Land	15 Hyacinth Street GREYSTANES NSW 2145, Lot 29 DP 239685
Proposed Development	Section 4.55(2) application for various modifications to approved child care centre including increasing capacity from 28 to 40 places, reconfiguration of first floor to provide indoor play area and addition of outdoor play area, reallocation of basement car parking spaces, front facade changes and addition of signage
Site Area	560.2m²
Zoning	R2 Low Density Residential Zone
Disclosure of political donations and gifts	Nil disclosure
Heritage	The subject site does not contain a heritage item, and is not located within the vicinity of the heritage item or heritage conservation area
Principal Development Standards	Permissible: Floor Space Ratio – 0.5:1 (HLEP 2013) Proposed: 0.48:1 Permissible: Height of Buildings – 9m (HLEP 2013) Proposed: 8.4m (no changes)
Issues	· Car parking allocation; · Basement setback; · Upper level use; and · Upper level rear setback.

Summary:

1. Modification Application No. MOD2020/0332 was received on 29 September 2020 for the Section 4.55(2) application for various modifications to approved child care centre including increasing capacity from 28 to 40 places, reconfiguration of first floor to provide indoor play area and addition of outdoor play area, reallocation of basement car parking spaces, front facade changes and addition of signage.

2. The application was publicly notified to occupants and owners of the adjoining properties for a period of 14 days between 21 October 2020 and 4 November 2020. In response, no submission was received.

3. The subject application has been assessed against the relevant provisions of State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017, Child Care Planning Guideline (the Guideline) 2017, Holroyd Local Environmental Plan 2013 and Holroyd Development Control Plan 2013 (HDCP).

4. The numerical variations are as follows:

Control	Required	Provided	% variation
Basement setback	0.9m	Nil	100%
Upper level rear setback	7m	5.2m	25.71%

5. The application is referred to the Cumberland Local Planning Panel (CLPP) as the modification seeks to alter a condition of approved development specifically added by the Panel, being the size of deep soil area to accommodate mature planting on the north-western corner of the rear yard.

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

Report:

Subject Site and Surrounding Area

The subject site is known as 15 Hyacinth Street, Greystanes, and is legally described as Lot 29 in DP 239685. The site is located on the western side of Hyacinth Street. The site is a rectangular block with a frontage of 20.4m, depth of 27.4m and a total site area of 560.2m². Single-storey dwelling with attached carport on the site have been demolished. Construction for the child care centre is nearly completed. Adjoining developments consist of one to two storey detached dwelling houses with landscaped front setbacks. Widemere Public School directly adjoins the subject site and shares its rear boundary. Nemesia Street Park is located 100m walking distance north-east from the subject site. The subject site and all of adjoining properties are zoned R2 Low Density Residential.

Figure 1 – Locality Plan of subject site

Figure 2 – Aerial view of subject site

Figure 3 – Street view of subject site

Description of the Proposed Development

MOD2020/0332 is seeking various modifications to an approved child care centre including increasing capacity from 28 to 40 places, reconfiguration of first floor to provide indoor play area and addition of outdoor play area, reallocation of basement car parking spaces, front facade changes and addition of signage. Additional gross floor area (GFA) of 1.7m² is proposed for the external storage on the first floor level.

Key features of the development proposal are as follows:-

Level	Previous Approval (DA2018/284/2)	Modified Proposal
Basement Level	10 car parking spaces (2 staff and 8 visitor including 1 accessible) Fire stairs, lift and bin room Minimum side setbacks 415mm	Reallocation of car parking space to provide a total of 10 car parking spaces (3 visitor and 7 staff spaces including 1 accessible). The car parking spaces allocation however is not supported by Council and the plans need to be amended to accommodate 3 staff and 7 visitor spaces including 1 accessible. New columns between car parking spaces. Works subject to this proposal have been completed. Should approval be granted, the applicant will be required to obtain a BIC from Council for the unauthorised works. Minimum nil setbacks
Ground Floor	Reception and office 2-3yr old indoor play area (10 children) 3-5yr old indoor play area (18 children) Outdoor play area including landscaped area, external storage, verandah and deep soil area	No changes. Gradual reduction in deep soil area dimensions from: - 5.7m (length) x *2.7m* (width) (DA2018/284/1) to, - 5.7m (length) x 2m (width) (M2018/284/2) to, - 5.7m (length) x *1.1m* (width) (subject modification). The deep soil area is required to accommodate a mature planting as imposed by CLPP at its meeting on 16 April 2019 as a deferred commencement condition. Planting of tree with size of 1 x 45L as indicated in condition 206A is therefore required. Refer to Council’s Tree Management Officer comments for further details. Works subject to this proposal have been completed. Should approval be granted, the applicant will be required to obtain a BIC from Council for the unauthorised works.
First Floor	Staff room, kitchen, office, laundry, front balcony and bathroom	New signage with dimensions of 950mm (width) x 4m (length). Staff room, kitchen, laundry, front balcony, cot room, 0-2yr old indoor play area (12 children), rear facing balcony for outdoor play area, external storage and disabled bathroom. Works proposed have been completed. Should approval be granted, the applicant will be required to obtain a BIC from Council for the unauthorised works.

The modified child care centre seeks to increase children placement from 28 to 40 children, as follows:

· 12 children – 0-2 yrs

· 10 children – 2-3 yrs

· 18 children – 3-5 yrs

The proposed centre will operate from 7.00am to 6.00pm Monday to Friday and will employ minimum of 7 staff.

History

- DA2018/284/1 was approved by the CLPP on 16 April 2019 as deferred commencement consent for the demolition of existing structures and construction of a 26 place two storey, child care centre over basement parking accommodating 9 parking spaces. Deep soil area with dimensions of approximately 5.7m (length) x 2.7m (width) to be provided on the north-western corner of the rear yard to accommodate a mature planting forms part of the deferred commencement condition.

- Operational consent of DA2018/284/1 was issued by Council on 12 June 2019.

- M2018/284/2 was approved by the CLPP on 13 November 2019 as section 4.55(1A) modification application seeking removal of the external storage shed and dense planting, reinstatement of visitor parking space numbered 10 in the basement, and amendments to the outdoor play space to increase the capacity of approved child care centre from 26 to 28 places. Deep soil area with dimensions of approximately 5.7m (length) x 2m (width) is proposed on the north-western corner of the rear yard to accommodate a mature planting, which is subject to condition 206A replicated as follows.

206A. All trees installed within close proximity to the rear boundary fence line that are 45L and greater in container size shall be appropriately maintained by a qualified horticulturalist for a minimum period for 12 months from the date of issue of the final Occupation Certificate, or until the respective trees reach a height of 6m and greater, measured from the base of the tree.

- Construction Certificate was issued on 6 February 2020 by the private certifier.

Applicants Supporting Statement

The applicant has provided a Statement of Environmental Effects prepared by Think Planners dated 18 September 2020 and was received by Council on 29 September 2020 in support of the application.

Contact with Relevant Parties

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

Internal Referrals

Development Engineer

The development application was referred to Council’s Development Engineer for comment who has advised that the development proposal is satisfactory in relation to the basement level changes and car parking reallocation and therefore can be supported subject to recommended conditions of consent.

Environment and Health

The development application was referred to Council’s Environment and Health Officer for comment who has advised that the development proposal is satisfactory in relation to the acoustic impacts and therefore can be supported subject to recommended conditions of consent.

Tree Management Officer

The development application was referred to Council’s Tree Management Officer for comment who has advised that the development proposal is satisfactory for further reduction to the deep soil area width from 2m to 1.1m and therefore can be supported subject to recommended conditions of consent, in which instead of 1 x 45L tree, 2 x 25 L trees could be planted as replacement.

Children’s Services

The development application was referred to Council’s Children’s Services for comment who has advised that the development proposal is satisfactory and therefore can be supported subject to recommended conditions of consent in complying with the Education and Care Services National Regulations and Law requirements.

Building Surveyor

The development application was referred to Council’s Building Surveyor for comment who has advised that should the proposal be supported, building information certificate must be submitted to Council for works that have been completed.

External Referrals

The application was not required to be referred to any external government authorities for comment. Concurrence from the NSW Department of Education for the proposed first floor level outdoor play area for children aged 0-2 years is not required. The outdoor area is not considered as simulated space given that the wall within the opening forms of the perimeter has height less than 1.4m.

PLANNING COMMENTS

Section 4.55(2):

Requirement	Comments
Council 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, changes to the approved built form of a two storey child care centre with additional 12 children proposed.
Council has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 5) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and	No Minister, public authority or other approval body was required to be consulted regarding the proposed modification.
Council 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.
Council 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.
Relevant matters referred to in Section 4.15(1) of the act have been taken into consideration	ii) The provisions of the applicable EPIs are discussed elsewhere in this report. The provisions of the applicable DCP are discussed elsewhere in this report. There are no planning agreements or draft planning agreements related to this application. There are no relevant matters referred to in the regulations. The likely impacts of the development as proposed to be modified are considered satisfactory. The site is considered to be suitable for the development as proposed to be modified. The Section 4.55(2) Modification was notified in accordance with Holroyd Development Control Plan 2013. No submissions were received. Approval of the subject application is not contrary to the public interest.

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

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

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

The requirement at Clause 7 of SEPP 55 for the consent authority to be satisfied that the site is suitable or can be made suitable to accommodate the proposed development was considered under the original application. The proposed modifications do not raise any new concerns regarding site contamination.

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

Part 4 – Applying the National Regulations to development proposals
4.1 Indoor space requirements
(Regulation 107) Min. 3.25²m of unencumbered indoor space (Regulation 107)	Required: 28 x 3.25sqm = 91m² (GF) 12 x 3.25sqm = 39m² (FF)	Provided: 97.5m² 39m²

4.9 Outdoor space requirements

(Regulation 108)

Min. 7sqm of unencumbered outdoor space per child.

Where a covered space such as a verandah is to be included in outdoor space it should:

· be open on at least one third of its perimeter

· have a clear height of 2.1 metres

· have a wall height of less than 1.4 metres where a wall with an opening forms the perimeter

· have adequate flooring and roofing

· be designed to provide adequate protection from the elements

28 x 7sqm = 196m² (GF)

12 x 7sqm = 84m² (FF)

210m²

90m²

The first floor level verandah is to be as outdoor space as it is open more than one third of its perimeter, have a clear height more than 2.1m, have a wall height less than 1.4m, have adequate flooring and roofing and designed to provide adequate protection from the elements.

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

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

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

Tree removal was assessed as part of the original application. No additional tree removal is sought as part of this modification application. Council’s Tree Management Officer has reviewed the proposed modification and raised no objections, subject to the imposition of conditions.

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

The relevant provisions of the SEPP have been considered in the assessment of the Application. A comprehensive assessment and compliance table is attached to this report in Appendix B which demonstrates the development proposal’s compliance with the relevant planning controls that are applicable to the site. The proposed child care centre signage is not considered as advertisements to which Clause 9 of SEPP 64 applies. It satisfies the definition of business identification sign in accordance with the Standard Instrument with proposed dimensions of 950mm (width) x 4m (length).

Regional Environmental Plans

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

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

Note: Will be superseded once Draft SEPP Environment comes into effect.

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

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

Local Environmental Plans

(g) Holroyd Local Environmental Plan (LEP) 2013

The proposed development is defined as a ‘centre based child care facility’ as stipulated below under the provisions of Holroyd Local Environmental Plan (LEP) 2013. Centre based child care facilities are a permissible land use with consent under the R2 – Low Density Residential zoning applying to the land under Holroyd LEP 2013.

centre-based child care facility means—

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

(i) long day care,

(ii) occasional child care,

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

(iv) preschool care, or

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

Note:

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

but does not include—

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

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

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

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

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

The proposed modifications do not result in any new non-compliances with the LEP. A comprehensive assessment and compliance table is attached to this report in Appendix C which demonstrates the development proposal’s compliance with the relevant planning controls that are applicable to the site under the Holroyd LEP 2013.

The provisions of any draft Environmental Planning Instruments (EP & A Act Section 4.15(1)(a)(ii))

(h) Draft Cumberland Local Environmental Plan (Draft CLEP)

The Draft Cumberland Local Environmental Plan (Draft CLEP) has been prepared by Cumberland City Council to provide a single planning framework for the future planning of Cumberland City. The changes proposed seek to harmonise and repeal the three existing LEPs currently applicable to the Cumberland local government area, those being:

· Holroyd Local Environmental Plan 2013,

· Parramatta Local Environmental Plan 2011, and

· Auburn Local Environmental Plan 2010.

The current planning controls for the subject site, as contained within the Holroyd LEP 2013 are not proposed to change under the Draft CLEP.

The provisions of any Development Control Plans (Environmental Planning & Assessment Act Section 4.15(1)(a)(iii))

(i) Holroyd Development Control Plan (HDCP) 2013

The Holroyd DCP 2013 provides guidance for the design and operation of development within Holroyd to achieve the aims and objectives of Holroyd LEP 2013.

The proposed modifications will result in new non-compliances with the relevant DCP controls as follows. Parts A, B & I apply to the proposal. A comprehensive assessment and compliance table is attached to this report at Appendix D.

Clause	Control	Proposed	Supported,
3.1 Minimum Parking Spaces	1 per 4 children & 1 per two employees. No of children – 40/4 = 10 No. of employees = 7/2 = 3.5~4 Total Required: 14	1 per 4 children in accordance with Childcare Planning Guideline requirement Required: 10	No, however, the proposal is relying on the car parking rate as stipulated in the Childcare Planning Guideline and it complies. The allocation between staff and visitors parking ratio need to be amended on the plans, subject to condition, to accommodate 3 staff and 7 visitor spaces including 1 accessible, which is considered satisfactory and supported by Council’s Development Engineer.
2.3 Setbacks (Part B)	Basement: 900mm to side boundary Upper level: 7m to rear boundary	Basement: nil setbacks Upper level: 5.2m	Yes, the expansion of basement footprint is required to allow for the provision of columns required for the construction of the child care centre. The impact of the proposed footprint is negligible to the landscaped area on the ground floor level. Further to that the subject site adjoins to the school’s yard at the rear. Non-compliance with the rear setback requirement will not impact the amenity of the school. Non compliances with the setback requirements are supported in this instance.
1 Size & Density (Part I)	Only office and storage space permitted on the upper level.	Additional indoor and outdoor playroom proposed for children aged 0 – 2 years old on the first floor.	Yes, the intent of the control to limit use of play area on the ground floor and to ensure that during evacuation process, the mobility of the children will be maintained. The proposal has been accompanied with details of how the evacuation could be carried out for the 0 – 2 years old children with the multi seats child carrier stroller, which is considered acceptable in case the lift is not useable during emergency events. Acoustic report submitted states that the child care centre operation can comply with the noise requirements for the proposed additional outdoor play area on the upper level by managing the play time and installation of acoustic barriers. Council’s Environment and Health Officer has reviewed the acoustic report and found that the proposal is satisfactory, subject to conditions.

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

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

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

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

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

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

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

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

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

Advertised (newspaper)

Mail

Sign

Not Required

In accordance with Council’s Notification requirements contained within the Holroyd DCP 2013, the proposal was publicly notified for a period of 14 days between 21 October 2020 and 4 November 2020. No submissions were received in respect of the proposed development.

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

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

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

This part of the Act relates to the collection of monetary contributions from applicants for use in developing key local infrastructure. The development does not require the payment of additional contributions in accordance with Holroyd Section 94 Contributions Plan 2013.

Disclosure of Political Donations and Gifts

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

Conclusion:

The Application has been assessed in accordance with the relevant requirements of the Environmental Planning and Assessment Act 1979, State Environmental Planning Policy No. 55 – Remediation of Land, State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017, Education and Care Services National Regulations, Holroyd Local Environmental Plan 2013 and the Holroyd Development Control Plan 2013 and is considered to be satisfactory for addition 12 children and internal modification to the approved built form.

The proposal is generally consistent with all statutory and non-statutory controls applying to the development. Minor non-compliances with Council’s controls have been discussed in the body of this report. The development is considered to perform adequately in terms of its relationship to its surrounding built and natural environment, particularly having regard to impacts on adjoining properties.

For these reasons, it is considered that the proposal is satisfactory having regard to the matters of consideration under Section 4.15 and 4.55 of the Environmental Planning and Assessment Act 1979, and the modified development may be approved subject to conditions.

Report Recommendation:

That Modification Application No. MOD2020/0332 for Section 4.55(2) application for various modifications to approved child care centre including increasing capacity from 28 to 40 places, reconfiguration of first floor to provide indoor play area and addition of outdoor play area, reallocation of basement car parking spaces, front facade changes and addition of signage on land at 15 Hyacinth Street GREYSTANES NSW 2145 be approved subject to attached conditions.

Attachments

1. Draft Notice of Determination

2. Architectural Plans

3. Previous Consent

4. Previous Approved Plans

5. Previous Cumberland Local Planning Panel Minutes

6. Appendix A - State Environmental Planning Policy (Educational Establishments & Child Care Facilities) 2017

7. Appendix B - State Environmental Planning Policy 64 – Advertising and Signage

8. Appendix C - Holroyd Local Environmental Plan 2013

9. Appendix D - Holroyd Development Control Plan 2013

10. Appendix E - Child Care Planning Guideline 2017

Cumberland Local Planning Panel Meeting

10 February 2021

Item No: LPP002/21

Development Application for 27-29 Toongabbie Road, Toongabbie

Responsible Division: Environment & Planning

Officer: Executive Manager Development and Building

File Number: REV2020/0006

Application lodged	25 September 2020
Applicant	Dawn Enterprise Pty Ltd
Owner	Mr P Kumar & Mrs P Guglani
Application No.	REV2020/0006
Description of Land	27-29 Toongabbie Road, Toongabbie NSW 2146, Lots 40 & 41 Section B DP 10697
Proposed Development	Section 8.3 Review of the Cumberland Local Planning Panel’s determination for the demolition of existing structures, consolidation of 2 lots into 1 lot, and construction of a residential flat building including a 3 storey building facing Cox Lane and a 5 storey building facing Toongabbie Road over basement parking accommodating 20 residential units and 25 parking spaces
Site Area	1393.5m²
Zoning	R4 High Density Zone (HLEP 2013)
Disclosure of political donations and gifts	Nil disclosure
Heritage	No
Principal Development Standards	FSR Permissible: 1.2:1 Proposed: 1.2:1	Height of Building Permissible: 15m Proposed: 16.13m
Issues	- Building height - Deep soil - Driveway setbacks - Site Coverage - Site Isolation - Submission

Summary:

1. Section 8.3 Review Application No. REV2020/0006 was received on 25 September 2020 for the Section 8.3 Review of the Cumberland Local Planning Panel’s determination for the demolition of existing structures, consolidation of 2 lots into 1 lot, and construction of a residential flat building including a 3 storey building facing Cox Lane and a 5 storey building facing Toongabbie Road over basement parking accommodating 20 residential units and 25 parking spaces.

2. The application was publicly notified to occupants and owners of the adjoining properties for a period of 14 days between 14 October 2020 and 28 October 2020. In response, Council received 1 submission.

3. The application involves the following numerical non-compliances as discussed in detail elsewhere in the report:

Control	Required	Proposed	% Variation
Building height (LEP)	15m	16.13m for the 5 storey building facing Toongabbie Road	7.53%
Deep soil (ADG) Site area: 1,393.5m²	7% (97.5m²)	Area = 79.9m² 5.7%	18%
Number of storeys (DCP)	4	5	25%
Site coverage (DCP) Site area: 1,393.5m²	Max 30% (418.05m²)	Area = 560m² 40.18%	33.95%
Driveway setback (DCP)	1.5m	1.185m	21%

4. The application is referred to the Panel as the proposal is a development with 4 or more storeys to which the State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Developments applies.

5. The application is recommended for approval subject to the conditions as provided in Attachment 1.

Report:

Subject Site and Surrounding Area

The subject site is known as 27-29 Toongabbie Road, Toongabbie and is legally described as Lots 40 and 41 Section B in DP 10697. The total site area is 1,393.5m2 with frontage of 30.48m on Toongabbie Road. Improvements on site consist of a single storey and a two storey dwelling with associated outbuildings located on each of the existing sites. There are existing trees located on the subject site and within the Council’s street verge. The site falls towards Toongabbie Road by approximately 1m from the north to south.

The subject site is located within the R4 – High Density Residential zone and borders the B2 – Local Centre zone to the north. It is located approximately within 300m walking distance to Toongabbie Railway Station and the town centre. Vehicular access to the site is designated from Cox Lane to the north. The construction of Cox Lane servicing the property at 64-72 Aurelia Street, which was approved for mixed use development (DA2016/57), has been completed. Existing developments adjoining the site include single storey dwelling houses located to the western side (31 and 33 Toongabbie Road). Residential flat building development, which has been approved under DA2016/75 to eastern side at 23-25 Toongabbie Road, is currently under construction. Existing lot at 31 Toongabbie Road will be landlocked as a result of this subject application and it is also burdened by the land dedication to form part of Cox Lane (refer to Figure 4). Existing lot at 33 Toongabbie Road was landlocked by the approved residential flat building development at 35-43 Toongabbie Road, which was approved under DA2015/9. With the exception of the laneway access to Toongabbie Road to be situated between 31 and 33 Toongabbie Road, the construction of Cox Lane has been completed at the rear of the subject site with access to Aurelia Street. Any future development of the properties at 31 and 33 Toongabbie Road must take into consideration the proposed location of Cox Lane within both sites.

Toongabbie Road is presently undergoing transformation by replacing the older stock of residential dwellings with multi dwelling development and residential flat buildings. The site does not contain any heritage items and is not within a heritage conservation area. There are no heritage items located within the visual catchment of the subject site.

Figure 1 – Aerial view of subject site

Figure 2 – Zoning map

Figure 3 – Street view of subject site

Figure 4 – Location of Cox Lane (marked in blue)

Description of the Proposed Development

Council is in receipt of a Section 8.3 Review Application on 25 September 2020 seeking a review of the CLPP’s determination of refusal for the demolition of existing structures, consolidation of 2 lots into 1 lot, and construction of a residential flat building including a 3 storey building facing Cox Lane and a 5 storey building facing Toongabbie Road over basement parking accommodating 20 residential units and 25 parking spaces.

Specific works of the proposed development include:

· Demolish existing single storey and two storey dwelling houses and ancillary structures including a detached fibro garage along the northern rear boundary.

· Removal of two (2) trees along the northern rear boundary.

· Construct part 5 and part 3 residential flat buildings (comprising of 4 x 1 bedroom, 12 x 2 bedroom and 4 x 3 bedroom units) accommodating a total of 20 units. Access into the site is viable from Toongabbie Road for pedestrians, and Cox Lane for both pedestrians and vehicles. The development provides communal open space with landscaping within the central courtyard and drainage system, pull in bay and substation at the rear. A lift is also proposed to allow access from the basement level of building facing Toongabbie Road.

· Construct a basement level car park to accommodate 25 car spaces including 3 accessible spaces, 4 visitor parking, 1 car wash bay, 16 bicycle spaces, waste/bin room, storage cages, plants and services, stairs for egress and a new driveway via Cox Lane.

The notable differences proposed between the previous design and the current design are as follows:

a) Changes to the architectural character of the building incorporate improvement to the materials and finishes and additional fenestration. Despite there being no difference in the number of units proposed, the overall FSR for the development has been reduced from 1.29:1 to 1.2:1. The reduction in floor area results from relocation of the waste/bin room into the basement level and the lobby area on the ground floor level is now an open breezeway within an outdoor area.

b) Slight reduction in the building height by 400mm for the building facing Toongabbie Road.

c) The size of private open spaces of ground floor units has been increased from 9.6m² to 15m², and deep soil zone has been increased from 2.42% to 5.7%. Site coverage has been reduced from 44.8% to 40.18%.

d) Basement parking layout, driveway and stormwater management designs have been amended to accommodate the development requirements.

e) Additional one (1) adaptable unit and one (1) accessible car parking space are proposed.

f) Additional details have been submitted in relation to the building separation at the rear of the site, acoustic impact from the development and flooding impact on the location of substation.

History

On 27 May 2020, the Cumberland Local Planning Panel resolved to refuse DA2019/0506 for the demolition of existing structures, consolidation of 2 lots into 1 lot, and construction of a residential flat building including a 3 storey building facing Cox Lane and a 5 storey building facing Toongabbie Road over basement parking accommodating 20 residential units and 25 parking spaces. The reasons for the refusal were as follows:

1. Failure to demonstrate compliance with State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development (pursuant to S.4.15(1)(a)(i) of the Environmental Planning and Assessment Act 1979), with regard to the following:-

Clause 28(2) – Determination of Development Applications

1.1 In determining a development application for consent to carry out development to which this Policy applies, a consent authority is to take into consideration the provisions of the Apartment Design Guide (ADG). The proposal is unsatisfactory with regard to the following provisions of the ADG:

3F – Visual Privacy

1.1.1 By reason of the provision of the 3.8m setback to Cox Lane, the proposal fails to protect visual privacy between the adjoining properties. The applicant has not demonstrated that a 12m building separation can be achieved as required by the ADG.

3E – Deep Soil Zones

1.1.2 By reason of the inadequate provision of deep soil area of 2.42% where 7% is required, the development fails to sustain planting of canopy trees to positively contribute to landscaping on the subject site.

4E – Private Open Space

1.1.3 By reason of the inadequate private open space for units 1, 2, 3 and 4 on the ground floor level of 9.6m² where 15m² is required, the development compromises amenity of future residents.

4W – Waste Management

1.1.5 Design to waste management area with openings is unsuitable as it is to be located adjoining to unit 4 bedroom window. Waste storage facility design fails to consider adverse impacts on the amenity of residents.

2. Failure to demonstrate compliance with Holroyd Local Environmental Plan (HLEP) 2013 (pursuant to S.4.15(1)(a)(i) of the Environmental Planning and Assessment Act 1979), with regard to the following:-

Clauses 4.3 and 4.6 – Variation to Height of Buildings

2.1 Pursuant to the Height of Buildings Map referred to in Clause 4.3(2) of HLEP 2013, the maximum permissible building height for the site is 15m. The maximum height of the proposed building is 16.7m, which is 1.7m greater than the maximum building height, representing a 11.3% variation to the development standard. The development application has not adequately demonstrated the variation to the building height would allow for the development that is complementary to, and well-integrated with the high density residential development; as an amended Clause 4.6 variation requested was not submitted.

The development application must be refused because a written request pursuant to Clause 4.6 of HLEP 2013 in relation to the 1.7m contravention of the development standard in clause 4.3(2) of HLEP 2013 has not been submitted to demonstrate:

i. that compliance with the development standard in clause 4.3(2) of HLEP 2013 is unreasonable or unnecessary in the circumstances of the case,

ii. that there are sufficient environmental planning grounds to justify contravening the development standard in clause 4.3(2) of HLEP 2013, and

iii. that the proposed development will be in the public interest because it is consistent with the objective of the standard in clause 4.3(2) of HLEP 2013.

Clauses 4.4 and 4.6 – Variation to Floor Space Ratio (FSR)

2.2 Pursuant to the Height of Buildings Map referred to in Clause 4.4(2) of HLEP 2013, the maximum permissible floor space ratio (FSR) for the site is 1.2:1. The maximum FSR of the proposed building is 1.29:1 representing a 8.25% variation to the development standard. The development application has not adequately demonstrated the variation to the FSR would allow for the development that is complementary to, and well-integrated with the high density residential development; as a Clause 4.6 variation requested was not submitted.

The development application must be refused because a written request pursuant to Clause 4.6 of HLEP 2013 in relation to the contravention of the development standard in clause 4.4(2) of HLEP 2013 has not been submitted to demonstrate:

i. that compliance with the development standard in clause 4.4(2) of HLEP 2013 is unreasonable or unnecessary in the circumstances of the case,

ii. that there are sufficient environmental planning grounds to justify contravening the development standard in clause 4.4(2) of HLEP 2013, and

iii. that the proposed development will be in the public interest because it is consistent with the objective of the standard in clause 4.4(2) of HLEP 2013.

Clause 6.5 – Essential Services

2.3 Inadequate information to confirm the location of substation to enable the supply of electricity to be provided wholly within the site.

Clause 6.7 – Stormwater Management

2.4 The proposed stormwater system will allow for contaminants to seep into the OSD tank, which is detriment to environment. Inadequate information to confirm that stormwater management could be provided wholly within the site.

3. Failure to demonstrate compliance with Holroyd Development Control Plan (DCP) 2013, Part A – General Controls (pursuant to S.4.15(1)(a)(iii) of the Environmental Planning and Assessment Act 1979), with regard to the following:-

3.3 – Car Parking Dimensions and 3.5 – Access Manoeuvring and Layout

3.1 The proposal fails to provide proper vehicles manoeuvring to allow for adequate setback from the existing lamp pole and side boundary, and sufficient passing and turning bays, as the aisle widths do not comply.

3.6 – Parking for Disabled

3.2 By the reason that 2 accessible spaces are provided where 3 spaces are required, the proposal fails to provide the required parking spaces for disabled person.

4. Failure to demonstrate compliance with Holroyd Development Control Plan (DCP) 2013, Part B – Residential Controls (pursuant to S.4.15(1)(a)(iii) of the Environmental Planning and Assessment Act 1979), with regard to the following:-

1.12 – Universal Housing and Accessibility

4.1 By the reason that 2 adaptable units are provided where 3 units are required, the proposal fails to provide the required parking spaces for disabled person.

6.2 – Site Coverage

4.2 The proposed site coverage is 44.8% where maximum of 30% is permitted, which results in failure to provide adequate deep soil area and stormwater management.

5. Failure to demonstrate compliance with Holroyd Development Control Plan (DCP) 2013, Part L – Town Centre Controls (pursuant to S.4.15(1)(a)(iii) of the Environmental Planning and Assessment Act 1979), with regard to the following:-

6.3 - Building Height

5.1 The maximum number of storeys for residential flat building on the subject site is 4 storeys. However, the development proposes a maximum 5 storey building. Given that the proposal has not been accompanied with appropriate justification and Clause 4.6 variation request for height of buildings, the storey exceedance is not supported.

Traffic and Parking

6. The development application should be refused because the design of the basement and car parking provided is unacceptable and fails to meet the relevant Australian Standards. There is inadequate information to demonstrate the following:

i. That dimensions of the proposed aisle width comply with the relevant Australian Standards.

ii. That two vehicles can pass each other at intersection points and at the entry and exit of the ramp.

iii. That details of the control device for the roller gates to ensure that the control device shall not reduce the width of the access driveway or impact on the flow of traffic and road safety.

iv. That appropriate setback of driveway to the existing lamp post could be provided.

Inadequate Information

7. The proposed development fails to address the relevant matters arising from the Environmental Planning and Assessment Regulations 2000 (EP&A Reg) in relation to documents required to be submitted to accompany a development application pursuant to Section 4.15(1)(a)(iv) of the Environmental Planning and Assessment Act 1979. The development application should be refused because there is inadequate information submitted with regard to the following:

i. There is inadequate information submitted to address issues raised with respect to the design of the basement, setback from existing lamp pole, and traffic and parking matters.

ii. There is inadequate information submitted to address issues raised with respect to the design of the stormwater management on site.

iii. A revised acoustic report to address noise during construction, communal open space, and mechanical and basement ventilations is required.

iv. There is inadequate information submitted to ensure supply of electricity could be provided wholly within the site.

Suitability of the site for the proposed development

8. The subject site is not considered suitable for the development as proposed due to the inadequacies detailed above (section 4.15(c) of the Environmental Planning and Assessment Act 1979).

Environmental Impact

9. Due to the deficiencies detailed above, the likely environmental impacts of the proposed development are considered to be unacceptable (section 4.15(1)(b) of the Environmental Planning and Assessment Act 1979).

Public Interest

10. Due to the deficiencies detailed above, approval of the proposed development would be contrary to the public interest (section 4.15(1) (e) of the Environmental Planning and Assessment Act 1979).

On 25 September 2020, Council received the subject s8.3 Review application seeking approval for the same development (i.e. demolition of existing structures, consolidation of 2 lots into 1 lot, and construction of a residential flat building including a 3 storey building facing Cox Lane and a 5 storey building facing Toongabbie Road over basement parking accommodating 20 residential units and 25 parking spaces). The proponent has sought to address the reasons for refusal by incorporating the following design amendments:

a) Amending the ground floor level design to reduce overall gross floor area and site coverage whilst increasing deep soil area and private open spaces.

b) Improving the driveway access, provision of accessible car spaces and manoeuvring area on the basement level.

c) Submission of additional information regarding on site detention system, building separation at the rear, acoustic impact and substation.

Applicants Supporting Statement

The applicant has provided a Statement of Environmental Effects prepared by IDraft Architects dated 25 August 2020 and was received by Council on 25 September 2020 in support of the application.

Contact with Relevant Parties

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

Internal Referrals

Development Engineer

The development application was referred to Council’s Development Engineer for comment who has advised that the development proposal is satisfactory and therefore can be supported subject to conditions.

Environment and Health

The development application was referred to Council’s Environment and Health Officer for comment who has advised that the development proposal is satisfactory and therefore can be supported subject to recommended conditions of consent.

Landscape/Tree Management Officer

The development application was referred to Council’s Landscape/Tree Management Officer for comment who has advised that the development proposal is satisfactory and therefore can be supported subject to recommended conditions of consent.

Waste Management

The development application was referred to Council’s Waste Management Officer for comment who has advised that the development proposal is satisfactory and therefore can be supported subject to recommended conditions of consent.

External Referrals

Endeavour Energy

The application was required to be referred to Endeavour Energy for comment. Council received formal correspondence on 13 October 2020 raising no objections to the proposed development subject to advisory comments provided.

PLANNING COMMENTS

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

The proposed development is affected by the following Environmental Planning Instruments:

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

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

Matter for Consideration	Yes/No
Does the application involve re-development of the site or a change of land use?	Yes No
a) Does the application involve re-development of the site or a change of land use?	Yes No
In the development going to be used for a sensitive land use (e.g.: residential, educational, recreational, childcare or hospital)?	Yes No
Does information available to you indicate that an activity listed below has ever been approved, or occurred at the site? acid/alkali plant and formulation, agricultural/horticultural activities, airports, asbestos production and disposal, chemicals manufacture and formulation, defence works, drum re-conditioning works, dry cleaning establishments, electrical manufacturing (transformers), electroplating and heat treatment premises, engine works, explosive industry, gas works, iron and steel works, landfill sites, metal treatment, mining and extractive industries, oil production and storage, paint formulation and manufacture, pesticide manufacture and formulation, power stations, railway yards, scrap yards, service stations, sheep and cattle dips, smelting and refining, tanning and associated trades, waste storage and treatment, wood preservation	Yes No
Is the site listed on Council’s Contaminated Land database?	Yes No
Is the site subject to EPA clean-up order or other EPA restrictions?	Yes No
Has the site been the subject of known pollution incidents or illegal dumping?	Yes No
Does the site adjoin any contaminated land/previously contaminated land?	Yes No
Has the appropriate level of investigation been carried out in respect of contamination matters for Council to be satisfied that the site is suitable to accommodate the proposed development or can be made suitable to accommodate the proposed development?	Yes No
Details of contamination investigations carried out at the site: i. ii.A Preliminary Site Investigation prepared by Geotechnical Consultants Australia dated 6 September 2019 (E1961-1) was submitted with the application. The report identified that the site is suitable for the proposed development, subject to implementing recommendations in section 12 of the report, including the completion of a Hazardous Materials Survey prior to the construction and following the protocol of unexpected find. Further, the report has been reviewed by Council’s EHU and the advice provided that the proposal was satisfactory to proceed subject to recommended conditions to be imposed on the consent.

(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. Please refer to the DCP compliance table for further discussion.

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

BASIX Certificate 1034598M_03 dated issued on 21 August 2020 prepared by Credwell Energy has been submitted to Council and is considered to be satisfactory.

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

The proposal is classified as a residential apartment development and SEPP 65 applies. A design verification statement signed by registered architect Biljana Pop Stefanija (8789) was submitted with the application.

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.

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

3E	Deep Soil Zones
3E-1	Deep soil zones provide areas on the site that allow for and support healthy plant and tree growth. They improve residential amenity and promote management of water and air quality. Area of 7% (97.5m²) with minimum dimension of 3m to be provided	Due to the nil setback provision applying on the site, the area nominated for deep soil zone adjoining to Cox Lane equates to 79.9m² or 5.7%. The remaining deep soil area is in the form of planter boxes, which equates to 84.4m². Total deep soil area proposed is 164.3m² or 11.79%. The proposed development demonstrates that sufficient area for deep soil to sustain the growth of canopy trees and positively contribute to the landscaped area provision could be provided within the planter boxes proposed. Section plan has also been submitted with the application to support this.
4D	Apartment Size
4D-1	Apartments are required to have the following minimum internal areas: Min. Internal Area - Studio = 35m² - 1 b/r unit = 50m² - 2 b/r unit = 70m² - 3 b/r unit = 90m² The minimum internal areas include only one bathroom. Additional bathrooms increase the minimum internal area by 5m² each. A fourth bedroom and further additional bedrooms increase the minimum internal area by 12m² each.	All units meet the minimum ADG sizes, with minor non compliances of 2 bedroom with 2 bathrooms unit nos. 1, 3 and 7 as follows. Unit 1 – 72m² Unit 3 – 72m² Unit 7 – 70.5m² Without reducing the dimensions of living area and bedrooms, unit 1 and 3 shall be amended to 75m² in size, with the area apportioned from Unit 2 which has additional floor area above the minimum standard.Unit 7 shall be provided with only 1 bathroom to comply with size of 2 bedroom unit. Condition is to be imposed to satisfy the minimum internal areas requirements accordingly.

(e) State Environmental Planning Policy (Infrastructure) 2007

The provisions of the Infrastructure SEPP (ISEPP) 2007 have been considered in the assessment of the development application.

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

The proposed development involves works within proximity to the existing overhead power lines. As such, the application was referred to Endeavour Energy for comment as the relevant electricity supply authority.

See discussion regarding the Endeavour Energy response under ‘external referrals’ above.

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

(g) Holroyd Local Environmental Plan 2013

The proposed development is defined as a ‘residential flat building’ under the provisions of HLEP 2013 as follows. Residential flat buildings are permitted with consent in the R4 – High Density Residential zone which applies to the land.

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

Note—

Residential flat buildings are a type of residential accommodation—see the definition of that term in this Dictionary.

The proposed development results in the following non-compliance.

Development Standard

Proposal

Compliance

4.3 Height of Buildings

15m

Proposed:

16.13m (RL46.95 – RL30.82m AHD) for the building facing Toongabbie Road

List of exceedances:

(according to the calculation of the assessment planner):

Part of the awning – 1.13m (7.53%)

Lift overrun – 0.7m (4.6%)

Variation: 4% to 7.53%

Clause 4.6 variation request has been submitted accompanying the application for the breach in the building height development standard by 4.6% or 700mm. It is the view of Council Officers that the applicant’s written request, as stated below, has adequately addressed the matters required to be demonstrated by clause 4.6 subclause (3), with the exception of the building height exceedance within the habitable area. Further reduction in floor to floor height on each level for the building facing Toongabbie Road by 0.1m will ensure that the building height exceedance includes only part of the awning and lift overrun. Condition is to be imposed accordingly.

A comprehensive HLEP assessment is provided at Attachment 6.

Clause 4.6 – Variation to Building Height

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

The applicant has submitted a written request to vary the development standards for exceedance of building height facing Toongabbie Road with variation of 4.6% or 700mm. Based on various case laws established by the Land and Environment Court of NSW such as Four2five P/L v Ashfield Council [2015] NSWLEC 9, Randwick City Council v Micaul Holdings P/L [2016] NSW LEC7 and Zhang and anor v Council of the City of Ryde [2016] NSWLEC 1179, a 3 part assessment framework for a variation request proposed under clause 4.6 has been considered and an assessment of the proposed variance, following the 3 part test is discussed in detail below.

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

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

Applicant’s justification:

Zone Objectives of the R4 Zone

The relevant objectives are prescribed as:

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

residential environment.

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

environment.

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

· The proposal is consistent with the objectives of the zone, providing for the housing needs of the community in a high density residential environment and providing a variety of housing types in the development scheme.

Planner’s comment:

The development is consistent with the zone objectives, as the proposal provides a variety of housing needs across the site with a mixture of 1 to 3 bedrooms apartments.

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

Applicant’s justification:

The objectives of the building height development standard are stated as:

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,

The current development proposal seeks to depart from the height control for small portions of the upper storey of the building, and the ‘shifting’ of the height of the Cox Lane building to the Toongabbie Road building to establish the 3-5 storey height split on the site rather than a uniform 4/4 storey approach.

Despite this, the proposal remaining consistent with the objectives of the clause because:

· The visual impact of the non-compliance is limited noting the departure is as small portion of the Toongabbie Road building that provides a suitable design response. The transfer of height will reduce the visual impact of the development relative to Cox Lane.

· The shadow diagrams show the adjoining properties received adequate solar access, noting the elements of non-compliance are limited to the Toongabbie. Road building which actually shifts the height towards Toongabbie Road which reduces the shadow impact to the adjoining properties given the lot orientation as the shadow is then largely cast on the road.

· The departure will not unreasonably impact on the solar access of adjoining properties or the public areas in the vicinity of the site which satisfies objective

(c). The orientation of the site means that there is self-shadowing from the

laneway building- hence maintaining a 3 storey form in that the location

maximises solar access to the common open space area and also avoids self-shadowing of the north facing dwellings in the 5 storey building.

· The additional height has no bearing on the privacy of neighbouring properties;

· The development is designed to follow the landform.

· The development provides an appropriate scale and intensity, noting consistency with the intent of the Toongabbie Town Centre DCP through

following the urban design principles established on the adjoining site with the 3/5 storey split and noting the FSR is in compliance. In a compliant scheme the design outcome results in the same yield- but a poorer planning outcome. It is preferred to adopt a height much lower than the 15m to Cox Lane and transfer this height to Toongabbie Road.

· The departure does not impact on the achievement of suitable land use intensity and the proposal maintains an appropriate height of 3-5 storeys, which satisfies objective (a) and the stepped height of the development allows maximum solar access to the site and a suitable bulk and scale to the lane (3 storeys) with the larger building mass facing Toongabbie Road and aligns with the observed character along Toongabbie Road to the east which is 5 storeys (either constructed or approved including the site immediately to the east of this site.

Planner’s comment:

The proposed development is consistent with the building height objectives as the built form is considered to respond to the site topography and its location within the vicinity of the Toongabbie Town Centre. The bulk and scale of the development is considered acceptable and the development presents acceptable visual and solar access impacts on the amenity of future development itself and the neighbouring properties.

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

Applicant’s justification:

To adopt a compliant 4/4 storey form, which would adopt the same yield, would reduce solar access, and also result in a design outcome that is inconsistent with the approved 5/3 storey split (noting construction on that site is imminent).Therefore, the design response relates to the context of the site and the lot orientation as well as Urban Design Principles of avoiding an overwhelming height and scale to the built form on the narrow laneway alignment.

Planner’s comment:

Strict compliance with the maximum building height requirement is considered unreasonable and unnecessary in the context of the development as the built form is site responsive, particularly with the approved adjoining development at 23-25 Toongabbie Road under DA2016/75 adopting the similar yield with building height exceedance facing Toongabbie Road. The development presents an acceptable bulk and scale within the existing streetscape.

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

Applicant’s justification:

In relation to environmental planning grounds the variation to the height standard is satisfactory on these grounds for the following reasons:

· The additional height transferred to the Toongabbie Road building as proposed does not result in detrimental environmental planning outcomes, as it does not give rise to adverse solar access, view loss or visual or acoustic privacy impacts on site, or to neighbouring properties and if anything it improves solar access and reduces bulk to the laneway.

· The provision of a logical built form outcome, noting that the adoption of a 3-5 storey ‘split’ follows the recent development consent for the development at 23-25 Toongabbie Road (immediately adjoining the site).

· The design intent is clearly to match the form associated with the adjoining site. The development proposes a residential flat building comprising of 2 buildings, with the overall design scheme influenced by a comparable flat building approved to the site’s immediate eastern boundary (23-25 Toongabbie Road, Toongabbie) by DA-75/2016. Similar to 23-25 Toongabbie Road, the current application comprises of a 5 storey form that addresses Toongabbie Road that transition into a 3 storey form addresses Cox Lane.

· The desire to maximise solar access to the internal communal open space area which is assisted through the lower height of the Cox Lane building given the lot orientation. This also enables maximum amenity for residents in the north facing 5 storey form.

· The departure to the height standard furthers the objects of the Environmental Planning and Assessment Act 1979 as set out below:

· To promote the orderly and economic use and development of land

· To promote good design and amenity of the built environment through the provision of a suitable contextual response with the 3/5 storey height split which follows the adjoining site and maximises solar access to the subject site and surrounding properties.Given the above, and as a result of the agreed laneway interface of the adjoining property and the adoption of a 3/5 storey split the flexible application of the Height standard is not inappropriate in this instance. The above discussion demonstrates that there are sufficient environmental planning grounds to justify the departure from the control.

Planner’s comment:

The variation to the maximum building height development standard is considered acceptable on environmental planning grounds and the Applicant’s written justification is well founded.

Conclusion:

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

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

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

(a) Draft State Environmental Planning Policy (Environment)

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

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

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

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

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

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

· Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005

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

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

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

(b) Draft Cumberland Local Environmental Plan (Draft CLEP)

The Draft Cumberland Local Environmental Plan (Draft CLEP) has been prepared by Cumberland Council to provide a single planning framework for the future planning of Cumberland City. The changes proposed seek to harmonise and repeal the three existing LEPs currently applicable to the Cumberland local government area, those being:

· Holroyd Local Environmental Plan 2013,

· Parramatta Local Environmental Plan 2011, and

· Auburn Local Environmental Plan 2010.

The current planning controls for the subject site, as contained within the HLEP 2013 are not proposed to change under the Draft CLEP.

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

Holroyd Development Control Plan 2013

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

A comprehensive HDCP compliance table is attached to this report at Attachment 7. A summary of the DCP non-compliances is provided in the following table.

No.	Clause	Proposal	Compliance
3.5	Access, Manoeuvring and Layout
	Driveways shall be setback a minimum of 1.5m from the side boundary.	The proposed driveway and vehicular crossing is offset 1.185m.	Minor non-compliance in driveways setback is considered acceptable in this instance given that the site is subject to nil setbacks control. The setbacks proposed will continue to maintain sufficient sightlines for vehicular access to the basement level. Council’s Development Engineer has reviewed the proposal and considered it to be acceptable, subject to conditions.
6.2	Site Coverage
	Maximum site coverage of any residential flat development shall not exceed 30% Max 0.3 x 1,393.5m² = 418.05m²	Area: 560m² 40.18%	The amended scheme proposes to further reduce site coverage on the site and increases landscaped area and private open spaces on the ground floor level. Non-compliance with the site coverage is therefore considered acceptable.
6.4	Building Height
	Maximum building height in storeys shall be provided in accordance with the table below: 4 storey	5 storey	Strict compliance with the number of storeys permitted on the Toongabbie Road will not be inconsistent with previously approved development, particularly on the adjoining sites at 23-25 Toongabbie Road under DA2016/75. Non-compliance with the number of storeys proposed is therefore considered acceptable. The additional height transferred to the Toongabbie Road building will not result in detrimental environmental planning outcomes, as it does not give rise to adverse solar access, view loss or visual or acoustic privacy impacts on site, or to neighbouring properties given it reduces bulk to the laneway being located on the northern side of the site.
1.1	Site Consolidation
	Amalgamation of lots in accordance with Figure 5 is required	Due to the existing approval on Toongabbie Road, the desired lots amalgamation could not be achieved and would result in the landlocking of 31 Toongabbie Road.	Development proposals that create land locking or site isolation shall provide documentation that demonstrates a reasonable attempt has been made by the applicants to purchase the land locked site(s), including written valuation that represent the affected sites potential value. Consistent with the Planning Principle of Karavallas v Sutherland Shire Council [2004] NSWLEC 251 (Karavellas v Sutherland Shire Council), the application is supported by an offer to the owner of the isolated property, with the offer being based on two recent independent valuations. The offer is deemed a reasonable offer by the Planning Principle of Karavallas v Sutherland Shire Council. Furthermore, the applicant has also submitted a concept plan of how the landlocked site may be development in the future , which has been reviewed and found to be acceptable.

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

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

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

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

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

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

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

Advertised (newspaper)

Mail

Sign

Not Required

In accordance with Council’s Notification requirements contained within the Holroyd DCP 2013, the proposal was publicly notified for a period of 14 days between 14 October 2020 and 28 October 2020. The notification generated one (1) submission in respect of the proposal with Nil disclosing a political donation or gift.

The issues raised in the public submission are summarised and commented on as follows:

Figure 5 – Submissions summary table

Concern

Comment

Landlocking of 31 Toongabbie Road; incomplete sketch of concept plan; burdening on 31 and 33 Toongabbie Road due to location of laneway

The matter in relation to the landlocking of 31 Toongabbie Road has been addressed in the assessment of this application in Holroyd DCP 2013 Part L. Offers based on valuation reports provided to 31 Toongabbie Road were rejected. Council is satisfied that the application has undertaken the steps required by Holroyd DCP 2013 including the submission of concept plan for 31 Toongabbie Road. Should a development application be lodged to Council for 31 Toongabbie Road, the onus is on the applicant of such development to submit detailed architectural plans. Proposal to relocate the laneway would require amendments to the Holroyd Development Control Plan and the relevant process should be undertaken by the affected sites to achieve that.

Given the location of the laneway between 31 and 33, the landlocking matter of 33 Toongabbie Road has been addressed by the assessment of DA2015/9 for residential flat building development at 35-43 Toongabbie Road.

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

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

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

Comments:

The development requires the payment of contributions in accordance with Holroyd Section 94 Contributions Plans.

The calculation is based on:

· 4 x 1 bedroom + 12 x 2 bedroom + 4 x 3 bedroom, less credit for 2 x 3 bedroom = $261,781.10.

This figure is subject to indexation as per the relevant plan. The draft determination attached includes a condition requiring payment of the contribution prior to issue of a Construction Certificate.

Disclosure of Political Donations and Gifts

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

Conclusion:

The development application has been assessed in accordance with the relevant requirements of the Environmental Planning and Assessment Act 1979, State Environmental Planning Policy No. 65, Holroyd LEP and Holroyd DCP; and is considered to be satisfactory for approval subject to conditions.

The proposed development is appropriately located within the R4 High Density Zone under the relevant provisions of the Holroyd LEP 2013. The proposal is generally consistent with all statutory and non-statutory controls applying to the development. The development is considered to perform adequately in terms of its relationship to its surrounding built and natural environment, particularly having regard to impacts on adjoining properties.

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 deferred commencement conditions.

Report Recommendation:

1. That the Clause 4.6 variation request to vary the Height development standard, pursuant to the Holroyd LEP P 2013, be supported.

2. That 8.3 Review Application No. REV2020/0004 for Section 8.3 Review of the Cumberland Local Planning Panel’s determination for the demolition of existing structures, consolidation of 2 lots into 1 lot, and construction of a residential flat building including a 3 storey building facing Cox Lane and a 5 storey building facing Toongabbie Road over basement parking accommodating 20 residential units and 25 parking spaces on land at 27-29 Toongabbie Road, Toongabbie NSW 2146 be approved subject to conditions listed in the attached schedule.

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

Attachments

1. Draft Notice of Determination

2. Architectural Plans

3. Clause 4.6 Variation Request

4. Refused Architectural Plans

5. Previous CLPP Minutes

6. Appendix A - State Environmental Planning Policy No. 65 –Design Quality of Residential Apartment Development

7. Appendix B - Holroyd LEP 2013

8. Appendix C - Holroyd Development Control Plan 2013

9. Redacted Submission