12 February 2020

A meeting of the Cumberland Local Planning Panel will be held at 11:30a.m at the Merrylands Administration Building, 16 Memorial Avenue, Merrylands on Wednesday, 12 February 2020.

Business as below:

Yours faithfully

Hamish McNulty

General Manager

ORDER OF BUSINESS

1.      Receipt of Apologies

2.      Confirmation of Minutes

3.      Declarations of Interest

4.      Address by invited speakers

5.      Reports:

          -        Development Applications

          -        Planning Proposals

6.      Closed Session Reports

 

 12 February 2020

CONTENTS

Report No.  Name of Report                                                                                         Page No.

Development Applications

LPP001/20... Development Application for 149 Auburn Road,  Auburn............................ 7

LPP002/20... Development Application for 57 - 61 Toongabbie Road, Toongabbie...... 83

LPP003/20... Modification Application for 5 - 7A Octavia Street, Toongabbie.............. 221

LPP004/20... Modification Application for 9-19 Mary Street, Auburn............................. 339

LPP005/20... Development Application for 49 Martin Street, Lidcombe......................... 517

LPP006/20... Development Application for 327 Merrylands Road, Merrylands............ 727

 12 February 2020

 

Item No: LPP001/20

Development Application for 149 Auburn Road,  Auburn

Responsible Division:                    Environment & Planning

Officer:                                              Executive Manager Development and Building

File Number:                                    DA2019/271  

 

 

1.       Development Application 2019/271 was received on the 29 August 2019 for the construction of toilet cubicles within the existing college.

2.       The application was publicly notified to occupants and owners of the adjoining properties for a period of fourteen (14) days between Tuesday 17 October 2019 and Tuesday 1 October 2019. There were no submissions to the works that are sought. 

3.       The variations are as follows:

4.       The application is recommended for deferred commencement consent subject to the conditions as provided in the attached schedule.

5.       The application is referred to the Panel because the development application contravenes a development standard by more than 10%.

Subject Site and Surrounding Area

The site is identified as Lot 15 in DP 1199248 being 149 Auburn Road Auburn. The site is located to the east of Harrow Road and to the west of Auburn Road. It lies in the vicinity of Beatrice Street to the north and Helena Street to the south. The site is irregularly shaped and occupies an area of 6,830 square metres with frontages to Harrow Road and Auburn Road.

There is a college situated across the site known as Al Faisal College which consists of 4 to 5 storey buildings (Building A, B, C, D and E) with building B, C and D having roof top play areas.

There is a three storey residential flat building complex situated to the north with frontages to both Harrow Road and Auburn Road.

The Auburn Uniting Church and associated hall is situated to the immediate south at 31 Helena Street with the church situated on the street corner. The church building and adjacent hall is identified as an item of local heritage significance under the Auburn Local Environmental Plan 2010. (Item No I21 in Schedule 5).

There are residential flat buildings and dwelling houses on land to the west and situated on the western side of Harrow Road.

There are residential flat buildings and dwelling houses on land to the east on the eastern side of Auburn Road.

The college site is located generally within an established low to medium density residential precinct currently zoned for Medium-Density residential land use.

 

The location of the site is shown below.

The aerial photo of the site.

 

 

 

A photograph of the College from Auburn Road

Photos of the works the subject of the development application

Description of the Proposed Development

Following a complaint on 8 April 2019 concerning unauthorised building works, Council officers inspected the site on May 15 2019 and identified that two toilet blocks were under construction without a valid consent being in place. A Stop Work Order 2 was issued on May 15 2019 that required the builders and owners to undertake the following:-

a)      Stop carrying out all building works associated with the construction of a multiple water closet cubicle structure located adjacent to the eastern elevation of building D and adjacent to the western boundary of premises known as 145 Auburn Road, Auburn.

b)      Stop carrying out all building works associated with the construction of a multiple water closet cubicle structure attached to the northern elevation of building D.

A copy of the Stop Work Order is attached at Appendix C.

The development application is in response to the “Stop Work Order” issued and seeks to legitimize the unauthorised works and to complete the works not undertaken.

The plans are showing two toilet blocks with one block situated adjacent to the eastern elevation of building Block D and one block situated adjacent to the western boundary of 145 Auburn Road. The toilet block adjacent to the eastern elevation of block D is provided with four toilet cubicles while the toilet block adjacent to the western boundary of 145 Auburn Road is provided with three toilet cubicles.

The toilet blocks are located on the ground floor and both enclosed within roofs and as such they add to floor space ratio for the site. In this regard, the toilet blocks as one entity add 15.6 square metres to the existing floor space ratio of the site (8.89 square metres and 6.72 square metres respectively). This results in the floor space ratio of the college increasing from 2.89:1 to 2.892:1 which is an increase of 0.002:1.

Should the Panel support the development application, a Building Certificate will be required in lieu of a Construction Certificate for the works already undertaken. Deferred commencement consent is required to address the matter and to ensure that a Building Certificate is lodged for the unauthorised works.

Applicants Supporting Statement

The applicant has provided a Statement of Environmental Effects prepared by Planning Ingenuity and dated 28 August 2019. This was modified on December 16 2019 as part of a submission addressing Clause 4.6 of the Auburn Local Environmental Plan 2010.

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 subject to a condition addressing the connection of stormwater from the works to the existing system. This is incorporated into the conditions of consent if supported.

Building Surveyor

The development application was referred to Council’s Building Surveyor for comment who has advised that the development proposal is satisfactory subject to conditions including the submission of a fire safety report. Any conditions are included into the recommended condition set at Appendix D at the end of this report.

Environment and Health

As per an Email memorandum dated 12 September 2019, no objections are raised to the development and no health conditions are required.

 

 

External Referrals

The development application was not required to be referred to any external government authority 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

State Environmental Planning Policy (SEPP) 55 requires Council to consider whether land, the subject of a development application is contaminated and if so, whether the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which development is proposed to be carried out.

The issue of land contamination has been addressed under earlier development consents such as Development Application 399/2004 and it is found that the history of the site is predominantly residential and later for educational use. The development application is for the construction of toilets which does not require any excavation work on site.

In view of the above, Council can be satisfied that the appropriate level of investigation has been carried out and that the proposed development is considered satisfactory with regard to Clause 7 of SEPP 55. The site is considered suitable (or capable of being made suitable) to accommodate the development.

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

The development application has been assessed under the relevant provisions of State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017. A detailed assessment where relevant is at Appendix A. It is concluded that the proposed development is fully compliant with the relevant provisions of the State Policy.

Design Guide for Schools

Clause 35(6)(a) of State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 requires Council to consider the Design Guide for Schools prepared by the Office of the Government Architect NSW for any development application for a school or works within a school ground. The works have been assessed using the Design Guide and it is determined that the works are satisfactory with the relevant provisions. A detailed assessment is at Appendix A.

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 covered 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

The provisions of the Auburn Local Environmental Plan 2010 are applicable to the development application. An educational establishment or college (school) is a permitted land use within the R3 Medium Density Residential zone subject to consent.

Alterations and additions to the college is also permitted with consent within the zone.

The development application raises no issues in relation to height as previously mentioned however the matter concerning floor space ratio requires further review given that an increase is proposed.

Clause 4.3 - Height of buildings

A maximum building height of 9 metres is specified for the site. The approved buildings reach a height of up to 23.6 metres from the natural ground level. The development application does not change the height of the college and no detailed discussion is required. The proposed toilet blocks have a height not exceeding 3.6 metres and given that they are located on the ground floor and within the building envelope, they do not raise any issues with respect to building height.

Clause 4.4 - Floor space ratio

The maximum permitted floor space ratio is 0.75:1.

The floor space ratio of the college is calculated at 2.89:1 which will increase by 15.6 square metres to 2.892:1. The increase of 0.002:1 in floor space ratio results in a floor space ratio being 385% of the maximum permitted for the site. The applicant has submitted a Clause 4.6 variation to the Auburn Local Environmental Plan 2010 which is discussed below to address the matter.

Clause 5.10 - Heritage Conservation

The site is not listed as a heritage item within the Auburn Local Environmental Plan. However, there is a heritage listed item situated at 31 Helena Street to the south west of the subject site being a church and an adjacent hall building which is listed as Item Number I21 in Schedule 5 of the Auburn Local Environmental Plan 2010. There is a significant buffer between the proposed works and the heritage listed item and as such, it is envisaged that the proposed works will have no adverse impact onto the heritage listed item.

A detailed assessment of the development application using the Auburn Local Environmental Plan 2010 is provided at Appendix B.

(a)     Clause 4.6 - Variation to Floor Space Ratio (Clause 4.4)

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 the floor space ratio (Clause 4.4).

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:

Clause 4.6(4) (a) (ii) requires the consent authority to be satisfied that the development is in the public interest because it is consistent with the relevant zone objectives. The objectives of the R3 zone are:-

“To provide for the housing needs of the community within a medium density residential environment”.

Comment: - The approved use of the site is an educational facility and as such, the objective does not apply to the subject site.

“To provide a variety of housing types within a medium density residential environment”.

Comment: - The approved use of the site is an educational facility and as such, the objective does not apply to the subject site.

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

Comment: - The proposed development will improve the amenity of the student population, the majority of whom are local residents. The proposed toilets blocks will not cause any adverse impacts to the locality.

Planner’s comment:

Objective (c) is the only relevant objective to consider given that the site is being used as an educational facility. The proposed development is considered to provide additional services to the college site in the form of additional toilets at a location appropriate to the student population. The proposed toilets blocks will not cause any adverse impacts to the locality and will not be seen from a public space close to the site. The development application is considered as being compliant with the relevant objective stated.

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

Applicant’s justification:

The Objectives of Clause 4.4 (Floor space ratio) are as follows:-

a)      To establish a maximum floor space ratio to enable appropriate development density to be achieved, and

b)      To ensure that development intensity reflects its locality.

The existing site provides for a floor space ratio of 2.89:1 which far exceeds the 0.75:1 permitted under the Auburn Local Environmental Plan 2010. The current floor space ratio was approved under DA 295/2014 (along with modifications A and B). The existing and proposed minor increase is consistent with the use of the site as an educational establishment. The proposed toilet blocks will not adversely impact onto the amenity of the neighbouring properties.

The proposed addition of two toilet blocks will not adversely add to the intensity of the site as the addition is minor and is not easily viewed from the public domain. The rest of the development will remain as approved under previous applications.

The proposed development minimises adverse environmental effects on neighbouring properties.

Planner’s comment:

As stated above, the current floor space ratio of the site has been established under previous developments consents issued for the site as well as various modifications granted thereafter.

The proposed increase in floor space ratio is considered to be minor but consistent with the use of the site as an educational establishment. The proposed addition of two toilet blocks will not adversely add to the intensity of use of the site, will not increase the student population and will not have an adverse impact to the site or to adjoining sites. The toilet blocks are located on the ground floor and screened from public spaces by existing buildings. Other than the addition of the two toilet blocks, the remainder of the college remains the same as per previous consents issued for the site.

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

Applicant’s justification:

Compliance with the maximum floor space ratio development standard is considered to be unreasonable and unnecessary as the objectives of the standard are achieved as follows:-

a)      It is considered that there is an absence of any material impacts of the proposed non-compliance on the amenity of the environmental values of the locality, the amenity of future building occupants and on area character.

b)      The proposed development meets the objectives of the development standard and meets the objectives of the R3 Medium Density Residential zone.

c)      The spaces in which the two toilet blocks are located are underutilised hardstand areas that are screened from the public domain and neighbouring properties.

d)      The toilet blocks are needed for the student population. The toilet will be located outside building E which is used to conduct examinations. The toilet blocks will allow students to use the facilities and promptly return to their examinations without wasting excessive amounts of time finding nearby toilets.

e)      The additional floor area proposed does not adversely change the character of the development in terms of streetscape and character. The scale and form of the development viewed from each street frontage reflects the desired planning controls and is consistent with the surrounding development. The additional floor space ratio is internalised on the site and will not be readily perceptible from the public domain or surrounding properties.

f)       The increase is minor in extent and the development allows for additional facilities for the student population.

Planner’s comment:

The applicant’s justification can be supported as follows:-

a)      The toilets do not create adverse internal and external amenity issues.

b)      The works are not seen from public spaces. In this regard, the works are internal to the site and not identified from an external public space.

c)      The increase is relatively minor in extent.

d)      The additional toilets provides for additional facilities on site in an appropriate location.

4.      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:

There are sufficient planning grounds to justify the contravention of the development standard as follows:-

·        The two toilet blocks are minor works that will not add to the intensity of the site.

·        The works are consistent with the use of the site as an educational establishment.

·        The amenity of the student population is improved by the addition of new toilets.

·        The toilet blocks will not cause any adverse impacts to the locality.

·        The contravention of the maximum floor space ratio standard does not raise any matter of significance for State and Regional environmental planning.

·        The works are not seen from the public domain.

Planner’s comment:

The statements provided within the Clause 4.6 variation are generally supported given that the toilets are minor additions to the college that are not readily visible from the public space. As such, the Panel may be satisfied that the applicant’s assessment is satisfactory.

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.

The applicants justification provided is satisfactory and having considered the application on its merit, the exception to the maximum floor space ratio 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))

There are no draft planning instruments that apply to the site.

 

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

Auburn Development Control Plan 2010 - Multi Dwelling Housing

Due to the subject sites being located within a Zone R3 - Medium Density Residential, the relevant objectives and requirements of the Multi Dwelling Housing chapter have been considered in the assessment of the development application. Whilst a number of the objectives, such as Built Form, Energy Efficient Design and Conservation, Privacy and Security and Access and Car Parking can be applied to the proposal, the detailed development control requirements of the Plan refer specifically to multiple dwelling developments only. This is outlined in Part 1.1 of the Plan. The proposed development does not incorporate any residential element and therefore, the specific controls are not applicable. As such, a detailed assessment is not warranted.

Auburn Development Control Plan 2010 - Parking & Loading

The relevant requirements and objectives of the Parking and Loading part of the Auburn Development Control Plan 2010 have been considered in the assessment of the development application. The parking rates prescribed by the DCP for educational establishments are based on student and staff numbers.

There are no proposed changes to student’s numbers on site and as such, no increase in car parking is proposed or required for the site.

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))

In accordance with Council’s Notification requirements contained within the Auburn Development Control Plan 2010, the development application was notified for a period of fourteen (14) days between Tuesday 17 September and Tuesday 1 October 2019. There were no submissions to the development application or works sought.

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 does not require the payment of contributions in accordance with Council’s Section 94 Contributions Plans because the cost of works is quoted at approximately $20,000 in value.

Disclosure of Political Donations and Gifts

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

The development application has been assessed in accordance with the relevant requirements of the Environmental Planning and Assessment Act 1979, State Environmental Planning Policies, the Auburn Local Environmental Plan 2010 and the Auburn Development Control Plan 2010. The development is considered to be satisfactory.

The proposed development is permissible within the R3 zone (Medium Density Residential) under the provisions of the Auburn Local Environmental Plan 2010. A variation to the floor space ratio under Clause 4.4 of the Auburn Local Environmental Plan 2010 is sought and it is considered that the increase is reasonable given the scale of works that are proposed.

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

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

 

Report Recommendation: 1.       That Development Application No. DA2019/271 for construction of toilet cubicles within the existing college on land at 149 Auburn Road Auburn be given deferred commencement consent subject to attached conditions as listed in the attached schedule.

 

1.      Appendix A - State Environmental Planning Policy  

2.      Appendix B -  Auburn Local Environmental Plan (LEP) 2010  

3.      Appendix C - Copy of the Stop Work Order  

4.      Appendix D - List of Conditions of Consent  

5.      Architectural Plans  

6.      Clause 4.6 Variation Request   

 

Attachment 1

Appendix A - State Environmental Planning Policy

 12 February 2020

 

 

 

 

 

Attachment 2

Appendix B -  Auburn Local Environmental Plan (LEP) 2010

 12 February 2020

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Attachment 3

Appendix C - Copy of the Stop Work Order

 12 February 2020

 

 

 

Attachment 4

Appendix D - List of Conditions of Consent

 12 February 2020

 

 

 

 

 

 

 

Attachment 5

Architectural Plans

 12 February 2020

 

 

 

Attachment 6

Clause 4.6 Variation Request

 12 February 2020

 

 

 

 

 

 

 

 12 February 2020

Item No: LPP002/20

Development Application for 57 - 61 Toongabbie Road, Toongabbie

Responsible Division:                    Environment & Planning

Officer:                                              Executive Manager Development and Building

File Number:                                    DA 2019/124  

 

 

1.      On 10 April 2019, development application (DA 2019/124) for the demolition of existing structures and construction of a three (3) storey residential flat building, comprising 34 residential units, over basement car parking containing 43 car parking spaces and 1 carwash bay was lodged with Council.

Note: The development presents as a 3 storey built form with 3 residential levels. However, is technically defined as a four storey development as the basement protrudes more than 1.2m above NGL at certain sections and therefore, is constituted as a ’storey’. This report therefore refers the development as a 4 storey building and all the assessment is done against the criteria for a 4 storey residential flat building. 

2.      The application was publicly notified to adjoining and opposite owners, a notice was placed in the local press and a notice placed on the site for 21 days from 22 May 2019 to 12 June 2019. In response, the application received one submission.

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

4.      The proposal seeks the following variations which are considered supportable as discussed in detail elsewhere in the report:

 

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

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

The subject site is known as 57, 59 and 61 Toongabbie Road, Toongabbie and is legally described as Lot 191,192 and 193 in Deposited Plan 11508. The site is located on the northern side of Toongabbie Road within the R4 High Density Residential zone. The site forms a regular midblock with a total area of 2759.10m2 and a combined frontage of 50.40m to Toongabbie Road. The site has a fall of approximately 1.4m from the front to rear. The site is currently occupied by detached dwelling houses, ancillary structures and vegetation.

The site is bounded by Council Park at the rear to its northern boundary, a multi-unit housing development to its eastern boundary and a single storey detached dwelling to the west.  The southern side of Toongabbie Road is zoned R3-Medium Density Housing and bounded by low density housing development. The site is located within the southern edge of Toongabbie Town Centre. There is a transition occurring currently with older low density housing stock being developed into residential flat buildings.

Figure 1 Aerial view of the locality with subject site (57-61 Toongabbie Road, Toongabbie)

 

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

 

 

 

 

Figures 3, 4 & 5: subject site (57-61 Toongabbie Road, Toongabbie)

 

 

Description of the Proposed Development

 

DA 2019/124 proposes for the demolition of existing structures and construction of a four (4) storey residential flat building, comprising 34 residential units, over basement car parking containing 43 car parking spaces and 1 carwash bay.

 

Key features of the development proposal are as follows:-

 

 

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

 

The dwelling mix of the proposal is as follows:

·        6 x 1 bedroom units (17.6%);

·        24 x 2 bedroom units (70.6%); and

·        4 x 3 bedroom units (11.8%).

 

Figure 6 – Perspective of proposed development –Toongabbie Road frontage

 

 

Application History

 

 

Applicant’s Supporting Statement

 

Statement of Environmental Effects prepared by Think Planners Pty Ltd, dated March 2019 and 29 October 2019 were submitted in support of the application.

 

Contact with Relevant Parties

 

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

 

Internal Referrals

 

Development Engineer

 

Council’s Development Engineer advised that the development is supportable with regards to the proposed new vehicular crossing and stormwater management, subject to deferred commencement conditions.

 

Traffic Engineer

 

Council’s Traffic Engineer has advised that the development is supportable in regards to parking, traffic management and on-site parking provision in the basement level, subject to conditions.

 

Tree Management Officer

 

Council’s Tree Management Officer has advised that the development is supportable subject to the imposition of conditions.

 

Waste Management Officer

 

Council’s Waste Management Officer has advised that the proposed waste management plan is supportable.

 

Environmental Health Unit

 

Council’s Environmental Health Officer has advised that the proposal is satisfactory subject to imposition of conditions of consent.

 

Parks & Recreation

 

Council’s Parks & Recreation Officer who has advised that the development is supportable subject to the imposition of conditions.

 

External Referrals

 

Transgrid

 

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

 

Endeavour Energy

 

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

 

 

NSW Police

 

The application was referred to NSW Police for comment regarding CPTED. Response dated 9 July 2019 indicates that the proposal is satisfactory subject to conditions.

 

Planning Assessment

 

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

 

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

 

(a)     State Environmental Planning Policy No 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 Joe El- Sabbagh was submitted with the application.

 

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

 

Figure 6 – SEPP 65 Design Quality Principles Table

 

 

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

 

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

 

 

(b)     State Environmental Planning Policy (Infrastructure) 2007

 

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

 

The development application was referred to Endeavour Energy and TransGrid for comment, who raised no objections, subject to conditions.

 

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

 

The requirement at clause 7 of SEPP 55 for Council to be satisfied that the site is suitable or can be made suitable to accommodate the proposed development has been considered in the following table:

 

 

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

 

BASIX certificate 915839M_02 dated 26 February 2019 was submitted with the original plans. The submitted BASIX certificate achieves target scores and is consistent with the architectural plans. Conditions of Consent have been applied requiring adherence to the BASIX Certificate requirements.

 

Regional Environmental Plans (Deemed State Environmental Planning Policies)

 

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

 

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

 

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

 

The proposal includes removal of existing trees within the subject site. However, this does not exceed the biodiversity offsets scheme threshold and the majority of the trees on site are exempt species. Therefore, the proposed vegetation removal is considered acceptable. Refer to the HDCP 2013 compliance table at attachment 3 for further comment regarding the proposed tree removal.

 

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

 

The subject site is not identified as a coastal wetland nor is it ‘land identified as “proximity area for coastal wetlands” as per Part 2, Division 1 of the SEPP Coastal Management 2018.

 

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

 

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

 

The proposal seeks a variation to Clause 4.3 – Height of Buildings that stipulates that the height of building is not to exceed 11m on the subject site.

 

The proposed building has an overall height of 11.5m (RL 44.98.) to the top of the lift core. The proposal breaches the overall height by 0.5m representing a maximum variation of 4.5%. The majority of the height breach is associated with the minor section of the roof structure and lift over-run.

 

Figure 7& 8 – 3D Height Plane and section showing extent of height variation sought

 

Clause 4.6 – Variation to Building Height

 

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

 

The applicant has submitted a written request to vary the development standard for building height. Based on various case laws established by the Land and Environment Court of NSW such as Four2five P/L v Ashfield Council [2015] NSWLEC 9, Randwick City Council v Micaul Holdings P/L [2016] NSW LEC7 and Zhang and anor v Council of the City of Ryde [2016] NSWLEC 1179 and recent case law in RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130, a 3 part assessment framework for a variation request proposed under clause 4.6 has been considered and an assessment of the proposed variance, following the 3 part test is discussed in detail below.

 

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

 

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

 

Applicant’s justification:

 

The development is consistent with the zone objectives noting that:

 

·        The development will provide for the housing needs of the community within a high density environment;

·        The development contributes to a variety of housing types in a high density environment;

·        The development will maximise public transport patronage by providing residential accommodation in an accessible location;

·        The development is designed to respond to the context and setting of the locality and the development is consistent with the desired future character of the locality;

·        The development is designed to minimise impact on the amenity of the area and adjoining properties.

 

Planner’s Comment:

 

Residential flat buildings are a permitted land use and the locality is undergoing a transition particularly to support the increasing demand of housing within the close proximity of public transport hub and major commercial centre. The proposed development is considered to be consistent with the objectives of the R4 High Density Residential zone.

 

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

 

Applicant’s justification:

 

The current development proposal is predominantly consistent with the building height with the exception of the roof structure and the lift over-run, the proposal remains consistent with the objectives based on the following:

 

·        The development proposal is consistent with the intent of the maximum height control with the proposed flat building contained below the maximum building height with the non-compliance contained to the roof structure (no habitable floor space) and lift overrun that is not discernibly different to a compliant form as viewed from the street or park given the location of the variation is located centrally to the building and the building presents a 3 storey form as viewed from the public domain.

 

·        The variation is primarily as result of appropriately responding to the flooding constraints of the site and the proposal adopts 3 residential levels consistent with the intended height of buildings in the area.

 

·        Due to the minor nature of the variation it will not have any adverse amenity impacts.

 

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

 

·        The scale of the proposed development will be appropriate and will be visually consistent with the permitted building height with the upper level recessed and designed using a lighter design style to ensure a positive streetscape presentation.

 

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

 

·        The scale and intensity of the development is appropriate noting that the proposal complies with the maximum FSR control that demonstrates an appropriate density.

 

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

 

Planner’s comment:

 

The objectives of the building height standard are to enable appropriate development density to be achieved and to ensure that the height of the building is compatible with the existing and desired future character of the locality. The increased height does not result in an additional level for residential use, as it comprises portion of the roof structures and the top of the lift core.

 

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

 

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

 

Applicant’s justification:

 

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

 

Planner’s comment:

 

Council Officers are satisfied that the proposed variation has been appropriately justified and can be supported in this instance. The height breach is limited to an overall building height of RL 44.98 for the top of the lift core. The additional height of the lift core will not be visible from the adjacent streets and properties. The proposed variation to the development standard is necessary for the structure containing the lift core and in order to achieve required FFLs, and is consistent with the scale of the development within the R4 zone located in the immediate vicinity of the site. The departure sought is considered to be modest and does not unreasonably impact on adjoining properties. The additional height does not result in the appearance of bulk when viewed from the existing streetscape, would not impinge on the changing streetscape that is anticipated for the immediate area and does not result in additional overshadowing to the adjoining properties. It is considered, therefore, that the non-compliance with the Development Standard is not unreasonable or unnecessary in the circumstances of the case.

 

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

 

The unique circumstances of the case are considered to warrant support of the departure. Given that the proposed development responds to the flooding constraints and does so without unduly compromising relationships with adjoining development, and does not unduly compromise other relevant controls, the proposal is considered to be consistent with the objectives of building height, and development within the R4 zone. In this regard, the exception is well founded and can be supported.

 

Conclusion:

 

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

 

It is the view of Council Officers that 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.

 

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

 

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

 

There are no draft SEPPs applicable to the proposed development.

 

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

 

(a)     Holroyd Development Control Plan 2013

 

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

 

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

 

 

 

Any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4 (EP&A Act s 4.15(1)(a)(iiia))

 

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

 

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

 

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

 

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

 

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

 

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

 

The site is considered suitable for the proposed development.

 

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

 

Advertised (newspaper)               Mail              Sign                  Not Required

 

In accordance with Part E - Public Participation of HDCP 2013, the proposal was publicly notified for a period of 21 days from 22 May 2019 to 12 June 2019. As a result of the notification, one submission was received. Amended plans submitted did not warrant re-notification of the proposal.

 

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

 

i)       The current rezoning of 57-61 Toongabbie Road is inequitable to the low density zoning of 46-48 Toongabbie Road.

 

Comment: The aforementioned concern regarding upzoning of the surrounding properties is considered to be a separate matter and not related to the subject application. The land was rezoned to current R4 High Density Residential following the due consultation process. 

 

ii)      The development in this locality will devalue surrounding properties.

 

Comment: Whilst property values are not a consideration under Section 4.15 of the EP&A Act, no evidence is provided to suggest that the proposed development will have any negative impact on surrounding property prices.

 

Section 7.11 of The Environmental Planning & Assessment Act 1979

 

The subject development requires the payment of contributions in accordance with Holroyd Section 94 Development Contributions Plan 2013. A condition is imposed requiring the payment of contributions.

 

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

 

·        6 x 1-bedroom dwellings = $54,636

·        24 x 2-bedroom dwellings  = $369,576

·        4 x 3 bedroom dwellings = $80,000

 

The required Section 7.11 contribution payable for the proposal is $444,212.

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

 

The Public Interest

 

The public interest is served by permitting the orderly and economic use of land, in a manner that is sensitive to the surrounding environment and has regard to the reasonable amenity expectations of surrounding land users. In view of the foregoing analysis, it is considered that approval of the proposed development would not be contrary to the public interest.

 

Disclosure of Political Donations And Gifts

 

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

 

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

The proposed development has been assessed in accordance with the relevant requirements of the Environmental Planning and Assessment Act 1979, State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development, Holroyd Local Environmental Plan 2013 and the Holroyd Development Control Plan 2013 and is considered to be satisfactory.

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

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

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

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

 

Report Recommendation: 1.      That the Local Planning Panel approve the variation to the Development Standard relating to building height as contained within Clause 4.3 of the Holroyd Local Environmental Plan 2013 as the applicant’s Clause 4.6 objection has adequately addressed the matters required to be demonstrated by Clause 4.6 (3) and the development will be in the public interest because it is consistent with the objectives of the Height Standard and the objectives of the R4 – High Density Residential zone. 2.      That Development Application 2019/124/1 for the demolition of existing structures and construction of a four (4) storey residential flat building, comprising 34 residential units, over basement car parking containing 43 car parking spaces and 1 carwash bay, be Approved via Deferred Commencement, subject to the attached conditions, provided at Attachment 4. 3.      That the applicant and those persons who lodged a submission in respect to the application be notified of the determination of the application.

 

1.      ADG Compliance Table  

2.      HLEP 2013 Compliance Table  

3.      HDCP 2013 Compliance Table  

4.      Draft Notice of Determination  

5.      Architectural Plans  

6.      Shadow Diagrams  

7.      Accompanying Clause 4.6 Variation Request to Building Height  

8.      Locality Map  

9.      Submission (x1)   

 

Attachment 1

ADG Compliance Table

 12 February 2020

 

 

 

 

 

 

 

 

Attachment 2

HLEP 2013 Compliance Table

 12 February 2020

 

 

Attachment 3

HDCP 2013 Compliance Table

 12 February 2020

 

 

 

 

 

 

 

Attachment 4

Draft Notice of Determination

 12 February 2020

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Attachment 5

Architectural Plans

 12 February 2020

 

 

 

 

 

 

 

 

 

 

 

Attachment 6

Shadow Diagrams

 12 February 2020

 

 

 

 

 

 

Attachment 7

Accompanying Clause 4.6 Variation Request to Building Height

 12 February 2020

 

 

 

 

 

 

Attachment 8

Locality Map

 12 February 2020

Attachment 9

Submission (x1)

 12 February 2020

 12 February 2020

Item No: LPP003/20

Modification Application for 5 - 7A Octavia Street, Toongabbie

Responsible Division:                    Environment & Planning

Officer:                                              Executive Manager Development and Building

File Number:                                    DA 2014/163/3  

 

 

1.      Development application (DA 2014/163/1) for demolition of existing structures; consolidation of 2 lots into 1; construction of a 4 storey residential flat building accommodating 24 residential units over basement parking accommodating 29 car parking spaces was approved under delegated authority on 16 February 2015.

2.      Section 4.55(2) modification application 2014/163/2 was lodged on 29 October 2018 and withdrawn on 8 May 2019.

3.      The subject 4.55(2) modification application was lodged on 4 October 2019 seeking alterations and additions to an approved residential flat building development including amendment to basement layout, internal configuration of units and addition of two residential units; totalling 26 units.

4.      The application was publicly notified to adjoining and opposite owners, a notice was placed in the local press and a notice placed on the site for 21 days from 30 October 2019 to 20 November 2019. In response, the application received no submissions.

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

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

Note: Only new non-compliances have been discussed within the body of the report which are proposed under the subject modification application. The original consent with the approved architectural plans is attached at Attachments 6 & 7.

7.      The application is being reported to the Cumberland Local Planning Panel (CLPP) for determination as it is a modification to a development with more than 4 storeys to which the State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Developments applies and exceeds Council delegation in relation to the determination of modification.

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

The subject site is known as 5 & 7 Octavia Street, Toongabbie and is legally described as Lots A & B in DP 416471. The site forms a regular midblock and has a combined area of 1,532.9m2 and frontage of 38.1m to Octavia Street. The property is currently vacant and comprises of some vegetation.

The subject site and neighbouring allotments are zoned R4 – High Density Residential.  The site is bounded by older style detached dwellings along the northern, southern and eastern boundaries. The western side of Octavia Street comprises of recently constructed residential flat building developments.  The site is located within the southern edge of Toongabbie Town Centre and is surrounded by other residential flat buildings of comparable scale.

Figure 1: Aerial view of the locality with subject site. (5-7A Octavia Road, Toongabbie)

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

 

Figures 3, 4 & 5: subject site (5-7A Octavia Street, Toongabbie)

 

 

Description of The Proposed Development

Council has received a Section 4.55(2) modification application to an approved residential flat building development seeking internal and external alterations and additions.

Key features of the modification proposal as provided in the applicant’s Statement of Environmental Effects are as follows:-

·        reconfiguration of basement with 2 additional parking spaces including an additional accessible parking space;

·        modified internal layout for units 6, 12, 18, and 24 (change in position of kitchen);

·        modified internal layout for units 3, 9, 15, and 21(change in position of kitchen and change in position of bedrooms);

·        amendment to level 5 common open space and the addition of 2 units;

·        provision of gas, electrical, water and service shafts;

·        the colour scheme of the building has changed;

·        substation.

The proposed Unit Mix is:

·        5 x 1 bedroom unit; and

·        21x 2 bedroom units.

The approved unit mix is as under:

·        4 x 1 bedroom unit; and

·        20x 2 bedroom units.

Figure 6: Photomontage of the proposed development

History

 

Applicant’s Supporting Statement

Statement of Environmental Effects prepared by Andrew Martin Planning Pty Ltd, dated December 2019 was submitted in support of the application.

Contact with relevant parties

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

Internal referrals

Development Engineer

Council’s Development Engineer advised that the development is supportable with regards to the proposed modifications.

Traffic Engineer

Council’s Traffic Engineer has advised that the development is supportable in regards to parking, traffic management and on-site parking provision in the basement level.

Waste Management Officer

Council’s Waste Management Officer has advised that the proposed waste management plan is supportable.

External Referrals

Tran’s grid

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

Endeavour Energy

The development application was referred to Endeavour Energy for comment who has advised that the provision of substation is supportable, subject to conditions.

Planning Assessment

Section 4.55(2) of the Environmental Planning and Assessment Act 1979 (EP & A Act)

Pursuant to Section 4.55(2), a consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if:

 

Section 4.15 of the Environmental Planning and Assessment Act 1979

Environmental Planning Instruments

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

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

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

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

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

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

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

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

A BASIX certificate no. 1047783M_02 dated 02 December 2019 was submitted by the applicant. The certificate achieves target scores and is consistent with the architectural plans.

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

The proposal is classified as a residential apartment development and SEPP 65 applies. A design verification statement signed by registered architect Joseph Panetta was submitted by the applicant.

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

Figure 6 – SEPP 65 Design Quality Principles Table

 

A comprehensive assessment and compliance table is provided at Attachment 1 which demonstrates the proposal’s compliance with the relevant planning standards that are applicable to the site.

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

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

A comprehensive assessment and compliance table is attached to this report in Attachment 2 which demonstrates the development proposal’s compliance with the relevant planning standards that are applicable to the site under the Holroyd LEP 2013.

The following table summarises and discusses the non-compliances with the Holroyd LEP 2013.

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

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

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

(a)     Holroyd Development Control Plan (DCP) 2013

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

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

4.15(1)(a)(iiia) - 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, and

There is no draft planning agreement associated with the subject 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 EP & A Regulations, 2000.

4.15(1)(a)(v) - any coastal zone management plan (within the meaning of the Coastal Protection Act 1979)

There is no Coastal Zone Management Plan applicable for the site.

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

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

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

The site is considered to be suitable for the proposed development.

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

Advertised (newspaper)               Mail                Sign         Not Required

In accordance with Part E - Public Participation of Holroyd DCP 2013, the proposal was publicly exhibited for 21 days from 30 October 2019 to 20 November 2019. In response, the application received no submissions.

Section 7.11 of The Environmental Planning & Assessment Act 1979

The subject development requires the payment of contributions in accordance with Holroyd Section 94 Development Contributions Plan 2013. A condition was imposed on the original consent requiring the payment of contributions. However, the value of the contributions will increase as a result of the proposed modifications.

In accordance with the currently indexed rates for the Toongabbie Centre contribution area, the following contributions apply for the additional 2 units:

·        1 x 1 bedroom dwelling = $9,106

·        1 x 2 bedroom dwelling =$15,399

·        Total = $24,505.00

The draft determination at Attachment 4 reflects the updated contributions.

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

The public interest is served by permitting the orderly and economic use of land, in a manner that is sensitive to the surrounding environment and has regard to the reasonable amenity expectations of surrounding land users. In view of the foregoing analysis, it is considered that approval of the proposed development would not be contrary to the public interest.

Disclosure of Political Donations and Gifts

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

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

The proposed development has been assessed in accordance with the relevant requirements of the Environmental Planning and Assessment Act 1979, State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development, Holroyd Local Environmental Plan 2013 and the Holroyd Development Control Plan 2013 and is considered to be satisfactory.

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

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

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

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

 

Report Recommendation: That modification application No. 2014/163/3 which seeks alterations and additions to an approved residential flat building development including amendment to basement layout, internal configuration of units and addition of two residential units; totalling 26 units be approved subject to the conditions within the draft Notice of Determination provided at Attachment 4.

 

1.      ADG Compliance Table  

2.      HLEP 2013 Compliance Table  

3.      HDCP 2013 Compliance Table  

4.      S4.55 Draft Notice of Determination  

5.      Architectural Plans  

6.      Original Consent- DA 2014/163/1  

7.      Approved Architectural Floor Plans-DA 2014/163/1  

8.      Locality Map   

 

Attachment 1

ADG Compliance Table

 12 February 2020

 

 

 

 

 

 

Attachment 2

HLEP 2013 Compliance Table

 12 February 2020

Attachment 3

HDCP 2013 Compliance Table

 12 February 2020

 

 

 

 

 

Attachment 4

S4.55 Draft Notice of Determination

 12 February 2020

 

 

 

Attachment 5

Architectural Plans

 12 February 2020

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Attachment 6

Original Consent- DA 2014/163/1

 12 February 2020

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Attachment 7

Approved Architectural Floor Plans-DA 2014/163/1

 12 February 2020

 

 

 

 

 

 

Attachment 8

Locality Map

 12 February 2020

 12 February 2020

Item No: LPP004/20

Modification Application for 9-19 Mary Street, Auburn

Responsible Division:                    Environment & Planning

Officer:                                              Executive Manager Development and Building

File Number:                                    MOD2019/5286  

 

 

1.      Modification Application MOD2019/5286 was received on 20 December 2019 to add a penthouse apartment to an approved 12 storey mixed use development at 9-19 Mary Street, Auburn.  The application also proposes the relocation of rooftop common open space to the podium level above the fifth storey and the conversion of a 1 bedroom apartment on the ground floor to an internal common room.

2.      As a result of the modification, the development will provide 157 residential units (40 x 1 bedroom, 90 x 2 bedroom, 26 x 3 bedroom units and 1 x 5 bedroom penthouse.  The development maintains the 5 x commercial suites and 1 x office suite over a part 4 and part 5 level basement for 288 vehicles.

3.      Notification of the application did not result in the receipt of public submissions.

4.      The proposed development involves a number of variations to relevant planning controls as follows:

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

6.      The application is referred to the Panel as the modification is made under Section 4.55(2) of the Environmental Planning and Assessment Act, 1979 (“the Act”).  Further, State Environmental Planning Policy No.65 - Design Quality of Residential Apartment Development applies to the development.  The building is more than 4 storeys in height.

Subject Site and Surrounding Area

The subject site is known as Lot 100, DP1259069, No. 9-19 Mary Street Auburn.  The subject site is located on the northwest corner of Mary Street and Harrow Road.

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

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

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

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

 

Figure 1 – Locality Plan of subject site

Figure 2 – Aerial view of subject site

 

 

Figure 3 – Street view of subject site showing current construction works

Description of the Proposed Development

Council has received an application to modify an approved 12 storey mixed use building at 9-19 Mary Street, Auburn. 

The approved development comprises 2 separate towers over a 5 storey podium and provides 5 commercial tenancies, 1 office and 157 residential apartments as follows:

 

The proposed modification seeks to add a 5 bedroom penthouse apartment of 414.45m2 which would replace the rooftop open space on the western tower.

Figure 4 – Comparison of approved rooftop open space and proposed penthouse (shaded green)

The modification will increase the total GFA of the development from 13,562.18m2 and an FSR of 4.97:1 to 13, 76.63m2 and an FSR of 5.12:1.

The modification application also seeks to relocate the rooftop open space that has been replaced by the penthouse to the podium between the towers.  This provides a rooftop open space which equitably shared and accessible between the 2 towers as shown in Figure 5.

Extensions to the private balcony areas of the adjoining apartments are also proposed. 

The provision of open space at the podium level is considered an aesthetic improvement in that it offers some landscape softening to the podium as opposed to a bare parapet.

Figure 5 – Comparison of approved podium rooftop and proposed podium open space (shaded green)

Finally, the modification application proposes the conversion of a 1 bedroom apartment on the ground floor to an indoor common room.  That common room also has access to the ground level common open space area linked by a balcony area as shown in Figure 6.

Figure 6 – Comparison of ground floor level showing new common room (shaded green)

History

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

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

The deferred commencement matters were completed and the consent became operative on 13 April 2018.

DA-92/2019 was lodged on 25 March 2019 for the construction of an additional 12 storey mixed use building component at 9-11 Mary Street, Auburn.  That DA also proposed a number of alterations and additions to the 12 storey mixed use building which was approved by DA-52/2017 at 13-19 Mary Street, Auburn.

DA-92/2017 was granted consent on 3 September 2019.

The lots comprising the site have now been amalgamated and are now known as Lot 100, DP 1259069.

Modification application DA-52/2017/C was lodged on 3 October 2019 to modify DA-52/2017 to add a penthouse apartment on top of the western tower in place of the rooftop common open space.

An initial assessment identified a number of matters that required amended plans and additional information, particularly:

 

·        Whether the breach in height should be supported for residential floor space when that floorspace removes amenity provided by the rooftop common open space;

·        Whether the breach in FSR should be supported; and

·        Whether the proposed modification resulted in equitable access to common open space between the 2 towers.

Those matters were communicated to the Applicant on 2 December 2019.

The Applicant met with Council and its consulting town planner on 5 December 2019 to discuss the above matters.

As a result of that meeting, it became apparent that in order to properly address the issues at hand, the modification should relate to DA-92/2019 which related to both 9-11 Mary Street and 13-19 Mary Street, as opposed to DA-52/2017 which only related to 13-19 Mary Street.  Subsequently DA-52/2017/C was withdrawn.

Modification application MOD2019/5286 was lodged on 20 December 2019 to modify DA-92/2019 and respond to the matters raised above.

Applicants Supporting Statement

 

The applicant has provided a Statement of Environmental Effects and an accompanying justification to the FSR variation prepared by The Planning Hub dated 17 December 2019 and was received by Council on 20 December 2019 in support of the application.

Contact with Relevant Parties

The consulting planner carrying out the assessment has undertaken a site inspection of the subject site and surrounding properties.  Council’s officer with carriage of the DA has been in regular contact with the applicant throughout the assessment process.

 

 

Consideration of Section 4.55(2) of the EP&A Act

Section 4.55(2) of the EP&A Act enables a consent authority to, on application, modify the consent if the preconditions in paragraphs (a) – (d) are satisfied.  The following assessment is provided to the tests outlined in those paragraphs.

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

Comment: Guidance on this question is found in Moto Projects (No. 2) Pty Limited v North Sydney Council [1999] NSWLEC 280 where Bignold J noted that consideration of a proposed modification must involve both a qualitative and a quantitative assessment.

In qualitative terms, the overall character, building envelope and appearance of the development is not substantially affected by the modifications, other than providing the penthouse and the podium level open space.

The quantitative characteristics of the development are not substantially modified, being limited to a change in the unit composition and an increase in the GFA and FSR.  Numerical compliance with the ADG and DCP provisions is unaltered by the proposed modifications.

It is therefore considered that the modified development is substantially the same as that for which consent was granted.

(b)     it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent

Comment: Not applicable

(c)       it has notified the application in accordance with—

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

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

Comment: The application was publicly notified to occupants and owners of the adjoining properties for a period of 14 days between 21 October 2019 and 4 November 2019. 

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

 

Comment: No submissions were received to the notification of the modifications.

The modification application satisfies the tests in Section 4.55(2) of the EP&A Act.

 

Planning Comments

 

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

 

State Environmental Planning Policies

 

The modification application is affected by the following State Environmental Planning Policies:

 

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

 

SEPP 65 applies to the development as the building is 3 storeys or more and contains more than 4 dwellings.

 

The modifications do not result in any variations to the provisions of the ADG beyond those that were given consideration in the assessment of the DA.

 

Relevantly, common open space remains compliant with 3D-1 of the ADG which calls for a common open space area equal to a minimum of 25% of the site area.

 

Common open space is provided as follows:

 

 

The above figure does not include the ground floor common room which has an internal size of 50m2 and a balcony of 22m2.  Excluding the ground floor common room and balcony, the total common open space provision equates to a total of 47.8% of the site area.

 

The penthouse is compliant with the minimum room sizes, ceiling heights and balcony requirements of the ADG.

 

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

 

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

BASIX Certificate 1041440M dated issued on 24 September 2019 prepared by Gradwell Consulting has been submitted with Council and is considered to be satisfactory.

 

Local Environmental Plans

 

Auburn LEP 2010

 

The provision of the Auburn LEP 2010 is applicable to the development proposal. 

 

The modified development involves exceedances to the prescribed maximum height of buildings in Clause 4.3 of the Auburn LEP 2010 and the prescribed maximum FSR under Clause 4.4 of the Auburn LEP 2010.  Those matters are discussed below.  Otherwise the modified development achieves compliance with the key statutory requirements of the Auburn LEP 2010 and the objectives of the B4 Mixed Use zone.

(a)     Permissibility:-

The development is defined as “shop top housing” and is permissible in the B4 Mixed Use zone with consent.  The modification does not change the nature of the development and as such the proposal in its modified form remains permissible.

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

Figure 4 – Auburn 2010 Compliance Table

Concerns were raised with the Applicant that the penthouse apartment could not be supported on the following grounds:

i.        The approved height breach had merit in that if offered the benefit of rooftop common open space which gave additional amenity to the residents;

ii.       The additional GFA of the penthouse resulted in an exceedance of the maximum FSR; and

iii.      The penthouse results in the loss of the rooftop open space and the amenity it affords the residents (notwithstanding that the rooftop was not required to meet the minimum requirement under the ADG).

The exceedance in height and FSR could only supported where:

i.        the Applicant demonstrated sufficient justification to do so; and

ii.       Alternative common open space was proposed to make up for the amenity lost by the deletion of the roof top area and afforded equitable access to all residents of the development.

The current scheme has responded to those matters by providing a common open space area on the roof of the 5th storey between the 2 residential towers.  That open space area comprises a terrace of 287m2 with landscaping, pergola and seating areas and is accessible via both towers.

The provision of communal open space has been improved by the introduction of the common room on the ground floor which is linked to the outdoor space via a balcony.  The common room provides an indoor seating area, kitchen facilities and a WC which add to the amenity and usability of the ground floor outdoor open space. 

The modification is also supported by written justification of the height and FSR exceedances, which are discussed below.

(b)     Variation to the Building Height

The applicant has submitted a justification for varying the development standard for building height under Clause 4.3.  Those justifications are listed below with comments thereon.

 

The variation is not considered to offend the objectives of the B4 Mixed Use zone, as follows.

 

The variation is considered to be consistent with the objectives of the development standard for building height, as follows.

 

Compliance with the development standard is unreasonable or unnecessary in the circumstances of the case as objectives of the height control are met notwithstanding the breach.

The proposal does not result in any adverse impact to adjoining properties.  The exceedance in height has already been considered and approved, albeit for common open space purposes and not habitable floor space.

The common open space has been maintained elsewhere within the development to ensure a range of open space options are available and made accessible to all residents of the development.

(c)     Variation to the Floor Space Ratio

The applicant has submitted a justification for varying the development standard for the FSR under Clause 4.4.  While Clause 4.6 does not apply to a Section 4.55 modification, that justification follows the format of a Clause 4.6 request.

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

 

 

 

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

 

 

 

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

 

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

 

The environmental planning grounds are considered to be sufficient to justify the breach, noting the minor nature of the breach.

Conclusion:

It is the author’s opinion that the applicant’s written requests adequately justify the numerical exceedance in height and FSR. 

The modified development remains 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 author’s view that the justification provided is satisfactory and having considered the application on its merit, the exceptions to the maximum building height and FSR development standards are 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 modified development does not raise issues relating to the draft SEPP(Environment).

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

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

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

The proposed modifications have been assessed against the Residential Flat Buildings provisions and the Local Centres provisions of the Auburn DCP. 

The proposed modified development complies with the provisions of those parts of the Auburn DCP 2010 and is considered acceptable from an environmental planning point of view.

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

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

 

Advertised (newspaper)

Mail

Sign

Not Required

 

In accordance with Council’s Notification requirements contained within the Auburn DCP 2010, the modification application as lodged under the previous modification (DA52/2017/C) was publicly notified for a period of 14 days between 21 October 2019 and 4 November 2019.

No submissions were received as a result of that notification.

The subject application (MOD2019/5286) was not separately notified.

Paragraph 3.6.6 of the ADCP 2010 – Introduction deals with circumstances where notification of an application may be dispensed with and states:

3.6.6   Circumstances where notification of an application may be dispensed with

a.      If a development application is amended, substituted, or withdrawn and resubmitted;

b.      Council has notified/advertised the original application in accordance with this section;

c.       Council is of the opinion that the amended, substituted, or resubmitted application differs only in minor respects from the original application, and does not result in a greater environmental impact or reduced levels of amenity to adjoining or nearby residents; and

d.      Council may decide to dispense with further notification/advertising in relation to the amended, substituted or resubmitted application at the discretion of the council for the management of assessment of the application.

MOD2019/5286 is a resubmission of DA-52/2017/C.  DA-52/2017/C was withdrawn to enable minor amendments to improve amenity and functionality of open space within the development.  These circumstances satisfy the provisions of paragraph 3.6.6 of the ADCP above.

As DA-52/2017/C was notified and no submissions were received, that notification is considered satisfactory as a notification of MOD2019/5286.

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 modified development requires an adjustment in the contributions in accordance with Council’s Section 94 Contributions Plans.

The total amount levied under DA-52/2017 for the western tower was $299,855.39.

The modified development requires contributions to be paid as follows:

          Drainage:                                      

          Community Facilities:                $85,969.29

          Public Domain:                          $190,094.25

          Accessibility and Traffic:            $52,306.41

          Administration:                           $20,107.13

          TOTAL:                                      $349,477.08

This figure is subject to indexation as per the relevant plan.

Disclosure of Political Donations And Gifts

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

The modification application has been assessed in accordance with the relevant requirements of the Environmental Planning and Assessment Act 1979, SEPP 65 – Design Quality of Residential Apartment Development, Auburn LEP 2010 and Auburn DCP 2010 and is considered to be satisfactory for approval subject to conditions.

The modified development seeks variations in relation to the maximum height of buildings and the maximum floor space ratio under the Auburn LEP 2010.

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

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

 

Report Recommendation: That Modification Application No. MOD2019/5286 for alterations and additions to an approved 12 storey mixed use building (DA-92/2019) at 9-19 Mary Street, Auburn to include a 5 bedroom penthouse apartment, relocate a rooftop common open space area by introducing a secondary communal open space on the podium, modify the existing communal open space and convert a 1 bedroom unit on the ground floor to a communal room at 9-11 Mary Street, AUBURN NSW 2144 be approved subject to attached conditions.

 

1.      Draft Notice of Determination  

2.      Modified Architectural Plans  

3.      Landscape Plan  

4.      Appendix A - State Environmental Planning Policy No.65  

5.      Appendix B - Auburn Local Environmental Plan  

6.      Appendix C - Auburn Development Control Plan  

7.      Appendix D - ADCP 2010 - Residential Flat Buildings   

 

Attachment 1

Draft Notice of Determination

 12 February 2020

 

 

 

 

 

 

Attachment 2

Modified Architectural Plans

 12 February 2020

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Attachment 3

Landscape Plan

 12 February 2020

 

 

 

 

 

 

Attachment 4

Appendix A - State Environmental Planning Policy No.65

 12 February 2020

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Attachment 5

Appendix B - Auburn Local Environmental Plan

 12 February 2020

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Attachment 6

Appendix C - Auburn Development Control Plan

 12 February 2020

 

 

 

 

 

 

 

 

 

 

 

 

 

Attachment 7

Appendix D - ADCP 2010 - Residential Flat Buildings

 12 February 2020

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 12 February 2020

Item No: LPP005/20

Development Application for 49 Martin Street, Lidcombe

Responsible Division:                    Environment & Planning

Officer:                                              Executive Manager Development and Building

File Number:                                    DA-274/2019  

 

 

1.      A pre-lodgement application was made under PL-61/2017 where a meeting was held with Council Officers to discuss the proposal in detail. The written advice concluded that the proposal was generally satisfactory to proceed subject to amendments.

2.      Development application No. DA-274/2019 was received on 2nd September 2019 for the Demolition of existing structures and construction of a two storey, 60 place centre-based child care facility with signage and at-grade car parking for 15 car spaces. However, as a result of recent amendments to the design scheme, the number of children for the centre has since been revised to 56 places with 14 car spaces.

3.      The application was publicly notified to occupants and owners of the adjoining properties for a period of fourteen days between 17 September 2019 and 1 October 2019. In response, twenty-seven (27) submissions including 2 petitions with each petition containing 30 and 98 signatures were received which raised concerns regarding permissibility, building height, traffic and parking impacts, noise and amenity impacts, excessive bulk and scale, streetscape and character and loss of privacy.

4.      Between 8 October 2019 and 14 January 2020, Council received various amended plans and documentation addressing issues raised in Council’s letter relating to insufficiencies with the proposed outdoor play area, waste management requirements and engineering matters being the primary issues.

5.      The application is referred to the Panel as the proposal is considered to be a contentious development due to the number of submissions received. The application is considered to be generally satisfactory and complies with the relevant statutory and non-statutory planning controls. The application is therefore suitable for support and recommended for approval subject to conditions as nominated within the attached schedule.

Subject Site and Surrounding Area

The subject site is legally described as Lot A in DP 178518 and is known as 49 Martin Street, LIDCOMBE. The site is located on the western side of Martin Street between Nicholas Street to the north and Rawson Street to the south. Phillips Park is situated approximately 80 metres to the north of the subject site and the Lidcombe town centre and train station is located approximately 800 metres to the south west.

The land is regular in shape with frontage width of 14.02 metres to Martin Street and depth of 75.85 metres, creating a total site area of 1062 m2. The site is currently occupied by an existing two storey brick house with a pitched tile roof. Ancillary structures in the rear yard include 2 storage sheds located adjacent to the site’s northern boundary and remnant trees and vegetation which are identified as being of low significance. The site has a moderate slope with a rise from the front to the rear boundary with a fall of approximately 2.5m across the site.

There is one street tree and a power pole that has been identified at the front of the site.

The land adjoining the site is also zoned R2 Low density residential and contains either one or two storey dwelling houses of varying size and scale.

 

A locality plan of the subject site is provided below.

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

Council has received a development application for demolition of existing structures and construction of a two storey centre-based child care facility for 56 places with signage and at-grade car parking.

The development comprises of the following components:

·        Demolition of the existing built form and its associated structures;

·        Removal of street tree to accommodate new driveway;

·        Construction of a two storey childcare centre with a capacity of 56 children comprising of:

-     10 x 0 to 2 years (babies)

-     20 x 2 to 3 years (Toddlers)

-     26 x 3 to 5 years

·        Landscaping (including external play areas) and required site works (including acoustic screening and fencing);

·        1500x640mm flush wall parapet business identification signage.

·        On site under croft car park for the provision of 14 spaces including an accessible space;

·        Vehicular access to the car parking facilities via a new driveway located on the northern half of the Martin Street frontage.

 

History

 

A pre-lodgement meeting was held with Council on 14 November 2017 for the proposed childcare centre development for 60 places. The written advice concluded that the proposal was considered to be generally satisfactory, however required amendments primarily in relation to access and parking to adequately address the matters raised in the pre-lodgement meeting.

 

The subject development application DA-274/2019 was lodged on 2nd September 2019. Following a detailed assessment of the proposal, a number of issues were identified regarding insufficient outdoor play area to comply with the relevant requirements, waste and engineering matters.

 

Following various discussions between the applicant and Council Officers, the proposal has been amended from 60 children with 15 parking spaces down to 56 children with 14 parking spaces, to demonstrate compliance with the matters raised above.

 

Applicants Supporting Statement

 

The applicant has provided a Statement of Environmental Effects prepared by Mariedent Australia Solutions and was received by Council on 2nd September 2019 in support of the application.

         

Contact with Relevant Parties

 

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

 

Internal Referrals

 

Development Engineer

 

The development application was referred to Council’s Development Engineer for comment who has advised that the development proposal is satisfactory in relation to stormwater drainage, access and parking subject to conditions for an amended parking layout.

 

Children Services

 

The development application was referred to Council’s Children Services section for comment who has advised that the development proposal is satisfactory 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 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 to proceed and no objections raised with respect to the removal of the nominated trees.

 

Waste Management

 

The development application was referred to Council’s Waste Management Officer for comment who has advised that the development proposal is now satisfactory as adequate provision of an enclosed bin storage room has been provided and shown on the amended plan.

 

External Referrals

 

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

 

Planning Comments

 

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

 

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

 

State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 – Part 3

 

The above SEPP sets out a new reform process for certain types of education and child care facilities to be determined under exempt and complying development that will make it easier for child-care providers, schools, TAFEs and universities to build new facilities and improve existing ones by streamlining the planning process to save time and money and deliver greater consistency across NSW.

 

Having regard to the above, the application is identified as a ‘centre based child care and Part 3 of the provisions of this SEPP is therefore applicable to the application. In this regard, the relevant provisions of Part 3 are discussed below:

 

 

The Child Care Planning Guidelines also list matters for consideration for this development application. This development application is considered to satisfactorily address those matters listed. A full assessment table is attached in Appendix A.

 

State Environmental Planning Policy No. 55 – Remediation of Land

 

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

 

 

State Environmental Planning Policy 64 (Advertising and Signage)

 

One business identification sign is proposed for the centre. The signage proposed is consistent with the schedule 1 assessment criteria requirements of the above SEPP and is therefore satisfactory. A comprehensive assessment and compliance table is provided in Appendix B.

 

Regional Environmental Plans

 

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

 

Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005

 

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

 

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

 

Local Environmental Plans

 

Auburn Local Environmental Plan 2010

 

The provision of the Auburn Local Environmental Plan (ALEP 2010) is applicable to the development proposal. It is noted that the development achieves compliance with the key statutory requirements of the ALEP 2010 and the objectives of the R2 Low density residential zone.

 

Permissibility:

 

The proposed development is defined as a “Centre-based childcare facility” and is permissible in the R2 zone with consent.

 

A 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:

 

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

 

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

 

e)      a babysitting, playgroup or child-minding service that is 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 relevant matters to be considered under Auburn Local Environmental Plan 2010 for the proposed development are summarised below.

 

ii)              

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

iv)       

(a)     Draft State Environmental Planning Policy (Environment)

v)         

vi)           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:

vii)     

·        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.

viii)        

ix)           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.

x)         

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

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

 

The Auburn DCP 2010 provides guidance for the design and operation of development to achieve the aims and objectives of the ALEP 2010. The relevant parts of the ADCP 2010 are discussed below.

 

 

a)      Childcare centres

         

The proposed development is considered to perform satisfactorily with regard to the Childcare Centres part of the ADCP 2010. A comprehensive assessment and compliance table is contained in Appendix B.

 

Minor non-compliances are noted with regard to the childcare centres section of the DCP in relation to fencing for the elevated outdoor areas, landscaping of the front yard and internal design layout for visibility and security.

 

In relation to fencing around the elevated outdoor spaces where a minimum 3m high fence is required, a variation to this control is considered acceptable as a 1.5m high barrier wall is provided. This is considered satisfactory with respect to the Childcare Planning Guidelines which prevails over Council’s controls. Additionally, a condition will be imposed for the height of the wall surrounding the elevated outdoor areas to be a minimum of 1.6m above finished floor level to make certain that concerns of privacy and overlooking are minimised.

 

It is noted that the proposal does not incorporate a front reception in the design to allow for direct visibility of all people entering and leaving the premises. However, the Plan of Management prepared by Gowrie, accompanying the application details a system in place for arrivals and departures to be recorded for all children, staff and visitors entering and leaving the premises. Due to the design layout incorporating an under croft car park which does not provide direct surveillance, it is considered appropriate to include a condition for an intercom monitor system which allows for controlled and secure access as well as CCTV recording for safety and security to further ensure staff are aware of all children and visitors entering and leaving the premises.

 

The non-compliance relating to landscaping of the front yard is considered to be acceptable given that some landscaping elements will be provided to differentiate between private and public interface that is compatible with the streetscape and character of the residential area. Further, the proposal is considered to be an improvement to the existing situation in that the site currently provides a 1.5 to 1.8m high solid masonry front brick fence and an impervious front yard composed of concrete. In this instance, a variation to this control is considered to be acceptable given the circumstances and merit of the application.

 

b)      Parking and Loading

 

The parking rate for a child care centre is based on 1 car space per 4 children. A maximum of 56 places are proposed for the centre. The development provides for 14 parking spaces in the under-croft car park which is adequate and complies with the parking requirement. The proposed car park includes provision of visitor parking and one space for people with disability and a turning bay for access and manoeuvring of the site. The plan has been reviewed by Council’s Engineer and the proposal considered satisfactory subject to conditions for a blind aisle extension to ensure the parking layout complies with AS2890.1.

 

c)      Detached Dwellings and Dual Occupancy

 

The Detached Dwellings and Dual Occupancy part of the ADCP 2010 have been reviewed. The objectives and requirements are considered to be of limited application for a purpose-built childcare centre. Notwithstanding, the required building setbacks and height have been observed and adhered to in the design of the proposed childcare centre to ensure that the development responds to the streetscape, character and built form so as to be sympathetic to the low scale residential nature and scale of the surrounding developments. The development provides a complying side setback of 900mm on either side and a rear setback of 17.4m which is considered acceptable given the proposed land use. It is noted that a front setback of 10.124m is provided for the development when a setback of 5.5 to 6m is usually required. Given that the proposal relates to childcare centre and that the prevailing front setback established for the adjoining dwellings and the street is greater than 6 metres, the non-compliance is considered satisfactory on its merit.

 

The development is therefore considered to blend in with the established residential built environment and is compatible in the locality.

 

d)      Waste

 

The proposed waste requirements of the ADCP 2010 is considered to be satisfactory. An enclosed bin room for storage of waste is provided to service the development. Council’s Waste Management Officer has also reviewed the plans submitted and is satisfied with the proposed waste rooms provided on site.

 

e)      Accessibility

 

The proposed accessibility requirements of the ADCP 2010 is considered to be satisfactory. The under croft car park and separate pedestrian access to the building is at grade, lifts have been provided for first floor level access and disabled toilet facilities have also been incorporated into the design. The application has also been supported with an access report prepared by Ergon Consulting, revision B, dated 29 August 2019 which is satisfactory.

 

f)       Stormwater drainage

 

The proposed stormwater drainage requirements of the ADCP 2010 is considered to be satisfactory. Council’s engineer has reviewed the concept stormwater plans submitted and recommended appropriate conditions to be imposed on the consent.

 

Having regard to the above, the proposed development is considered to be acceptable from an environmental planning view point.

 

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

 

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

 

Advertised (newspaper)

Mail

Sign

Not Required

 

In accordance with Council’s Notification requirements contained within the Auburn DCP 2010, the proposal was publicly notified for a period of 14 days between 17/09/19 and 01/10/19. The notification generated 27 submissions and a petition containing 98 signatures in respect of the proposal. Of these 27 submissions received, a total of sixteen (16) constitute a ‘unique submission’; being a submission which is unique in substance, distinctive or unlike any other submission. A unique submission precludes form letters and petitions from being counted more than once toward the total number of unique submissions. These definitions are in accordance with directions from the Department of Planning, Industry and Environment. Further, it is noted that nil submissions disclosed a political donation or gift.

 

Having regard to Council delegations, on 20 November 2019, a Council Resolution was made to amend Council’s internal policy and subsequent delegation to refer DAs to the Cumberland Local Planning Panel (CLPP) when ten (10) or more objections are received in accordance with the Local Planning Panels Direction – Schedule 1, Clause 2(b) as provided in the Ministerial Direction dated 23 February 2018. In this instance, the application is required to be referred to the CLPP for consideration.

 

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

 

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

 

The public interest is served by permitting the orderly and economic development of land, in a manner that is sensitive to the surrounding environment and has regard to the reasonable amenity expectations of surrounding land users.  In view of the foregoing analysis it is considered that the development, if carried out subject to the conditions set out in the recommendation below, will have no significant adverse impacts on the public interest.

 

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

 

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

 

Comments:

 

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

 

The calculation is based on the use being employment generating development.

The fee payable is $15,503.74. 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.

The development application has been assessed in accordance with the relevant requirements of the Environmental Planning and Assessment Act 1979, relevant SEPPs and SREPs. Auburn LEP 2010 and Auburn DCP 2010 is considered to be satisfactory for approval subject to conditions.

 

 

Report Recommendation: 1.       That Development Application No. DA-274/2019 for demolition of existing structures and construction of a two storey 56 place centre-based child care facility with signage and at-grade car parking on land at 49 Martin Street, LIDCOMBE NSW 2141 be approved subject to attached conditions listed in the attached schedule. 2.       Persons whom have lodged a submission in respect to the application be notified of the determination of the application.

 

1.      Draft Notice of Determination  

2.      Architectural Plans  

3.      Stormwater/Engineering Plans  

4.      Submissions Received  

5.      Plan of Management  

6.      Noise Impact Assessment Report  

7.      Appendix A - Childcare Planning Guidelines Assessment and Educational and Care Services National Regulations  

8.      Appendix B -ADCP 2010 Assessment and Schedule 1 Assessment Criteria (SEPP 64)   

 

Attachment 1

Draft Notice of Determination

 12 February 2020

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Attachment 2

Architectural Plans

 12 February 2020

 

 

 

 

 

 

Attachment 3

Stormwater/Engineering Plans

 12 February 2020

 

 

 

 

 

 

Attachment 4

Submissions Recieved

 12 February 2020

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Attachment 5

Plan of Management

 12 February 2020

 

 

 

 

 

 

 

 

 

Attachment 6

Noise Impact Assesment Report

 12 February 2020