Cumberland Local Planning Panel Meeting
10 March 2021
Item No: LPP008/21
Development Application for Shop 2/203-211 Merrylands Road, Merrylands
Responsible Division: Environment & Planning
Officer: Executive Manager Development and Building
File Number: DA2020/0617
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Application lodged |
21 October 2020 |
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Applicant |
K Alizadah and R Merzie |
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Owner |
Cumberland City Council |
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Application No. |
DA-2020/0617 |
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Description of Land |
203-211 Merrylands Road, Merrylands Lot 1, DP658197 and Lot D in DP344249 |
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Proposed Development |
Use and fitout of an existing shop as a bakery |
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Site Area |
1,250m2 |
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Zoning |
RE1 – Public Recreation |
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Disclosure of political donations and gifts |
Nil disclosure |
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Heritage |
No and not within a Heritage Conservation Area |
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Principal Development Standards |
None applicable |
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Issues |
- Permissibility (existing use rights) |
Summary:
1. Development Application DA-2020/0617 was lodged with Council on 21 October 2020 for use and fitout of an existing shop (shop 2) as a bakery.
2. The application was publicly notified to the adjoining and opposite properties for a period of 14 days between 20 January 2021 and 3 February 2021. In response, no submissions were received.
3. The development application relies on existing use rights and does not seek any variations to the planning controls.
4. The owner of the subject property is identified as Cumberland City Council. In this regard, in accordance with Schedule 2 of the Local Planning Panels Direction – Development Applications and applications to modify development consents, the application is referred to the Cumberland Local Planning Panel (CLPP) for determination.
5. The application is recommended for deferred commencement approval subject to the conditions as provided in the attached schedule.
Report:
Subject Site and Surrounding Area
The subject site is known as Shop 2 at 203-211 Merrylands Road, Merrylands and is legally described as Lot 1 in DP658197 and Lot D in DP344249. The site has a total combined area of approximately 1,250m2 and a primary frontage to Merrylands Road, Merrylands and a secondary rear frontage to Main Lane, Merrylands. The subject site is located within the Merrylands Town Centre.
The subject site is zoned RE1 – Public Recreation and the adjoining and surrounding area is zoned B4 Mixed Use and R4 – High Density Residential.
The subject site is known as the ‘Merrylands Arcade’ and contains a number of various commercial premises and provides a north-south walkthrough for pedestrians from Merrylands Road, Merrylands to the south to a Council carpark and McFarlane Street to the north.
The locality of the area includes a variety of commercial uses including predominately older single and two storey commercial businesses and newer high rise shop top housing developments. Merrylands Railway Station is located approximately 250m to the east of the site, a Council car park and Merrylands Shopping Centre is located to the north of the subject site.
The subject bakery business is known as ‘Khorasan Bakery’ was located at Shop 6 203-211 Merrylands Road, Merrylands which was approved by Council through DA-2016/548/1. The business is proposing to relocate to shop 2 as Council is proposing to redevelop part of the subject site.
The location of the site is shown below:
Figure 1 – Locality Plan of subject site indicated by purple outline.
Source: Cumberland City Council
Figure 2 – Aerial view of subject site as of 26 January 2021 outlined in purple.
Source: Cumberland City Council
Figure 3 – Front Elevation of subject site (Shop 2).
Source: Cumberland City Council
Figure 4 - Street view of subject site (Shop 2) and Merrylands Arcade including pedestrian walkthrough.
Source: Google Street View
Description of the Proposed Development
Council has received a development application for the use and fitout of an existing shop (shop 2) within Merrylands Arcade as a bakery. Specific details are provided below:
Use:
· Change of use of an existing commercial premises to a new commercial use being a Bakery.
Fitout:
· Partition wall separating the general public area and staff amenities, a cashier desk, internal storage room at the rear, various sinks and hand wash basins, shelving associated with the bakery and various other fitout works to permit the shop to comply with relevant Food/Australian Standards and the Building Code of Australia. Refer to Figure 5 below for further details.
Staff and hours of operation:
· Staff: 3 staff
· House of Operation: Monday to Sunday including Public Holidays: 6:00am to 9:00pm
Signage:
· The application does not seek consent for signage. In this regard, a condition is recommended in the Draft Notice of Determination that signage has not been approved under the application.
Council visited the premises on 2 February 2021 and issued a Stop Work Order to the subject premises on 9 February 2021 as fitout works associated with the subject application had commenced.
Figure 5 – Proposed floor plan. Source: Architectural Plan prepared by Abdul Yosufi
History
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Date |
Action |
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21 October 2020 |
The subject application was lodged with Council. |
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15 December 2020 |
Council issued a request for information letter to the applicant. |
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20 January 2021 to 3 February 2021 |
The application was placed on public notification. In response, no submissions were received. |
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10 February 2021 |
The applicant provided additional information. |
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10 February 2021 |
Council’s Waste Management unit advised that the application is satisfactory and therefore can be supported subject to conditions. |
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18 February 2021 |
Council’s Environmental Health unit advised that the application is satisfactory and therefore can be supported subject to conditions. |
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18 February 2021 |
Council’s Construction Projects Team advised that the application is satisfactory and therefore can be supported subject to conditions |
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18 February 2021 |
Council’s Building Assessment Team advised that the application is satisfactory and therefore can be supported subject to conditions including a deferred commencement condition for a Building Information Certificate. |
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10 March 2021 |
The application has been referred to CLPP for determination. |
Applicants Supporting Statement
The applicant has provided a Statement of Environmental Effects which was received by Council on 21 October 2020 in support of the application.
Contact with Relevant Parties
Council 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
Building Assessment Team
The development application was referred to Council’s Building Assessment Team 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.
Environmental Health
The development application was referred to Council’s Environmental Health Officer for comment who has advised that the development proposal is satisfactory and therefore can be supported subject to recommended conditions of consent.
Construction Projects Team
The development application was referred to Council’s Construction Project 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
The application was not required to be referred to any external agencies for comment.
PLANNING COMMENTS
The provisions of any Environmental Planning Instruments (EP&A Act s4.15 (1)(a)(i))
State Environmental Planning Policies
The proposed development is affected by the following State Environmental Planning Policies:
(a) State Environmental Planning Policy No. 55 – Remediation of Land (SEPP 55)
Clause 7 of SEPP 55 requires Council to be satisfied that the site is suitable or can be made suitable to accommodate the proposed development. The matters listed within Clause 7 have been considered in the assessment of the application and are considered 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 development raises no issues as no impact on the catchment is envisaged.
Local Environmental Plans
Holroyd Local Environmental Plan (HLEP) 2013
The provision of the HLEP 2013 is applicable to the development proposal. It is noted that the development generally complies with the key statutory requirements of the HLEP 2013.
(a) Permissibility and Existing Use Rights: -
The proposed development is defined as a ‘Takeaway food and drink premises’ and is not permissible in the RE1 – Public Recreation zone. In this regard, the proposed development relies on Division 4.11 (Existing uses) of the Environmental Planning and Assessment Act, 1979 (the Act). The Act allows for a site to rely on existing uses if the site is already used for a purpose, before the introduction of the relevant Local Environmental Plan, that otherwise would be prohibited under the relevant Local Environmental Plan.
Council records indicate that various approvals for use of the commercial businesses located within the Merrylands Arcade have been approved including for takeaway food and drink premises. The subject bakery business known as ‘Khorasan Bakery’ was located at Shop 6 within the arcade and was approved by Council through DA-2016/548/1. The business is proposing to relocate to shop 2 as Council is proposing to redevelop part of the subject site. Shop 2 has been used for various commercial uses in the past.
Section 4.65 of the Act defines an ‘existing use’. The subject site benefits from existing use rights as consent was issued for the commercial use of the subject site and had been in continuous operation before the commencement of the current version of the HLEP 2013.
Furthermore, the continued operation of the commercial premises relies on Clause 4.66 ‘Continuance of and limitation on existing use’ of the Act as noted in the aforementioned Council records. Given that there are no records of the business ceasing operation for a continuous period of 12 months, the existing use is not considered abandoned. Accordingly, Part 3 of the Clause is satisfied.
In accordance with Clause 41 ‘Certain Development Allowed’ of the Environmental Planning and Assessment Regulation 2000, an existing use may be enlarged, expanded or intensified, altered or extended or rebuilt and, if it is a commercial use, be changed to another commercial use (including a commercial use that would otherwise be prohibited under the Act).
Noting that the application sought for the existing commercial use does not constitute an enlargement, expansion, alteration, or extension to shop 2, the subject proposal does not involve any intensification of the use. The use is commercial and is for the relocation of an existing bakery from shop 6 to shop 2 within the same subject site being 203-211 Merrylands Road Merrylands. The size of the new shop 2 is consistent with the size of shop 6. Accordingly, the subject application is consistent with the provision.
In accordance with the existing use rights provisions contained in the Act and the Regulation, the application has established that the proposed development is related to an existing commercial premises being a bakery located within shop 6 of 203-211 Merrylands Road, Merrylands, which is seeking to relocate to shop 2 within the same site and benefits from existing use rights. In this regard, Council accepts the existing use rights as lawful.
A comprehensive LEP assessment is contained in Attachment 2.
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 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.
A ‘takeaway food and drink premises’ is permitted in the RE1 - Public Recreation zone under the Draft LEP. The other current planning controls for the subject site, as contained within the HLEP, are not proposed to change under the Draft CLEP.
The provisions of any Development Control Plans (EP&A Act s4.15 (1)(a)(iii))
The Holroyd DCP 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 contained in Attachment 3.
The proposed development does not introduce any non-compliances under the Holroyd DCP 2013.
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 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 Regulation 2000.
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))
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Advertised (newspaper) |
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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 20 January 2021 and 3 February 2021. 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.
Comments:
The development application does not require the payment of any Contribution Fees in accordance with Cumberland Local Infrastructure Contributions Plan.
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, Holroyd LEP 2013 and Holroyd DCP 2013 and is considered to be satisfactory for approval subject to conditions.
Having regard to the assessment of the proposal from a merit perspective, Council may be satisfied that the development has been responsibly designed and provides for acceptable levels of amenity and a commercial use within the Merrylands Town Centre. It is considered that the proposal successfully minimises adverse impacts on the amenity of neighbouring properties and businesses. Hence the development, is consistent with the intentions of Council’s planning controls and represents a form of development contemplated by the relevant statutory and non-statutory controls applying to the land.
For these reasons, it is considered that the proposal is satisfactory having regard to the matters of consideration under Section 4.15 of the Environmental Planning and Assessment Act 1979, and the development may be approved subject to conditions.
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1. That Development Application DA-2020/0617 for use and fitout of an existing shop as a bakery on land at Shop 2/203-211 Merrylands Road, Merrylands be approved subject to conditions.
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Attachments
1. Draft Notice of Determination
2. Holroyd Local Environmental Plan 2013 Assessment Table
