9 February 2022

A meeting of the Cumberland Local Planning Panel will be held at 11:30am via Zoom on Wednesday, 9 February 2022.

Business as below:

Yours faithfully

Peter J. Fitzgerald

General Manager

ORDER OF BUSINESS

1.      Receipt of Apologies

2.      Declarations of Interest

3.      Address by invited speakers

4.      Reports:

          -        Development Applications

          -        Planning Proposals

5.      Closed Session Reports

 

 9 February 2022

CONTENTS

Report No.  Name of Report                                                                                         Page No.

Development Applications – Public Meeting

LPP001/22... Development Application for 2-4 Cameron Street, Lidcombe....................... 5

LPP002/22... Development Application for 2-8 Vaughan Street and 1 Kerrs Road, Lidcombe        217

 

Development Applications – Electronic Determination

LPP003/22... Development Application for 7 Birmingham Street, Merrylands............... 341

 

 9 February 2022

Item No: LPP001/22

Development Application for 2-4 Cameron Street, Lidcombe

Responsible Division:                    Environment & Planning

Officer:                                              Executive Manager Development and Building

File Number:                                    DA2021/0462  

 

 

1.      Development Application No. DA2021/0462 was accepted on 31 August 2021 for the demolition of existing structures and construction of a three-storey boarding house, comprising 40 boarding rooms (inclusive of a manager's room) over basement parking.

2.      The application was publicly notified to occupants and owners of the adjoining properties for a period of 14 days between 10 September 2021 and 24 September 2021.

3.      Notification was extended for an additional 14 days from 6 October 2021 and 20 October 2021 in order to capture a wider catchment area. In response to the notification, a total of 44 unique submissions were received.

4.      Significant non-compliances and issues were identified and on this basis, a request to withdraw the application incorporating the list of concerns was sent to the applicant on 26 October 2021.

5.      The notable variations are listed as follows:

6.      The application is referred to the Panel as the proposal is considered to be contentious and contravenes a development standard by more than 10%.

7.      The application is recommended for Refusal for the reasons provided in the attached schedule.

 

Subject Site and Surrounding Area

The subject site comprises three lots being Lot X DP 402973, Lot Y DP 402973 and Lot 37 DP 1110750 and is known as 2-4 Cameron Street Lidcombe. The site is located at the end of a cul-de-sac and is irregular in shape with a frontage to Cameron Street of 34.11m and a total area of 1,171m2. The two larger sized lots are zoned R3 Medium Density Residential and the smaller lot (Lot 37 DP 1110750) is zoned SP2 Infrastructure.

As shown in Figure 1, the site is situated at the interface to a change in land use zone from R3 Medium Density Residential to R2 Low Density Residential. Befitting the R2 land use zone, dated single dwellings, dual occupancy and multi dwelling housing developments are located to the north on the opposing side of Cameron Street. Haslam’s Creek which is defined by a concrete channel traverses the eastern part of the site. A rail corridor runs parallel to the eastern boundary of the site and is setback approximately 22m. Immediately to the west lies a multi dwelling housing development with basement level parking. The site is located within walking distance to Lidcombe train station being approximately 1.2km away.

The site is a flood control lot and is impacted by 1 in 100 year flooding.

Currently, two dated single storey dwellings are located on the site. A large tree is located at the rear of the neighbouring property to the west with a canopy that extends over part of the development site.

Figure 1 – Locality Plan of subject site highlighted in ‘blue’

Figure 2 – Aerial view of the subject site highlighted in ‘blue’

 

Figure 3 – Street view of no. 2 Cameron Street

Figure 4 – Street view of no. 4 Cameron Street

Description of the Development

Council has received a development application for the demolition of existing structures and the construction of a ‘new generation’ boarding house comprising three storeys and basement level parking. The boarding house comprises 40 rooms inclusive of a manager’s room. Two accessible rooms are provided. Approval is sought for the use of car stackers in the basement level to provide 20 parking spaces, 8 motorcycle spaces and 8 bicycle spaces. A description of each level of the development is provided below.

Basement level

-        10 spaces are provided on the ground and an additional 10 spaces are proposed on car stackers.

-        2 disabled spaces and a shared zone.

-        8 motorcycle spaces.

-        8 bicycle spaces.

-        A services and bin room.

-        A pump room.

-        An elevator.

-        Stairway providing access to the ground level.

-        Basement ramp and driveway is located adjacent to the western side boundary.

Ground floor

-        13 boarding rooms, inclusive of one designed for disabled access.

-        A manager’s room and associated private open space.

-        A common room and a timber deck provide access to side and rear outdoor communal areas.

-        A disabled access ramp is located within the front setback.

First floor

-        15 boarding rooms inclusive of one designed for disabled access.

Second floor

-        11 boarding rooms.

Applicants Supporting Statement

The applicant has provided a Statement of Environmental Effects prepared by Corona Projects dated August 2021 and was received by Council on 25 August 2021 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 unsatisfactory as a 10m setback is not provided to the foreshore building line.

Furthermore, the submitted stormwater drainage design does not comply with the relevant requirements of Auburn Development Control Plan 2010 (ADCP). In this regard, an On-site Detention (OSD) system is required to serve the development. It was further noted that the basement drainage system does not comply with the relevant stormwater requirements of ADCP and above ground storage volume has not been provided.

The proposed onsite parking design is unsatisfactory as the use of car stackers is not supported. Moreover, the design of the parking layout, the basement ramp and vehicle manoeuvrability does not comply with the relevant Australian Standards.

Tree Management

Council’s Tree Management Officer has advised that an arborist report should have been prepared and provided to establish the impact of the proposed development on a mature tree located at the rear of the neighbouring property to the west.

Waste Management

Council’s Waste Management Officer has advised that the development is unsatisfactory as no waste management plan was submitted and an appropriately designed bin transfer path and temporary bin holding area has not been provided.

Environment and Health

Council’s Environment and Health Officer has advised that the development proposal is satisfactory and can be supported subject to conditions of consent.

External Referrals

Sydney Water

Insufficient information has been provided to determine whether the development will impact Sydney Water’s stormwater assets and its clearance requirements. In this regard, the applicant has not identified the outside edge of Sydney Water’s stormwater channel and a 1m clearance line from the outside face and the Sydney Water easement line (if any) on the architectural and stormwater plans. No structures, access paths, buildings, roof eve, stormwater pipes, stormwater pits or other permanent structures are to be located within the 1m clearance zone.

Fencing is required along Sydney Water’s stormwater assets. Any fence other than 1.2m high pool fencing, 1.8m high Colorbond fencing or equivalent should be located at least 1m away from the outside face of the stormwater channel and be supported on piers. The piers are to be extended at least 1m below the invert level of the stormwater channel or 1m below the zone of influence of the stormwater channel. Fencing along the stormwater channel is to be in such a way that the flood water and stormwater overland flow are to be able to flow across the fence in both directions.

Sydney Trains

Concurrence was granted by Sydney Trains for the proposed development with regard to clause 86(4) of the State Environmental Planning Policy (Infrastructure) 2007 (ISEPP).

Ausgrid

Ausgrid has raised no objection to the development subject to compliance with the relevant Ausgrid Network Standards and SafeWork NSW Codes of Practice for construction works near existing electrical assets being demonstrated. Compliance with this requirement can be addressed by imposing a condition of consent as part of any approval of the development.

NSW Police

NSW Police have raised no objection to the development but have identified several safety and security measures that are likely to reduce the opportunity of crime at the development site. These measures can be enforced by conditions of consent as part of any approval of the development.

Planning Comments

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

State Environmental Planning Policies

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

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

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

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

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

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

The application is subject to clause 86 of the ISEPP as the development involves the penetration of ground to a depth of at least 2m below ground level (existing) on land that is within 25m of a rail corridor.  Sydney Trains has assessed the development in accordance with the requirements of Clause 86(4) of the ISEPP and has advised that concurrence is granted subject to the imposition of conditions of consent.

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

The application is subject to clause 87 of the ISEPP as the site is likely to be adversely affected by rail noise or vibration. Council’s Environment and Health Officer has assessed the submitted acoustic report noting that it has considered the NSW DP&I Development Near Rail Corridors and Busy Roads – Interim Guidelines. No objection to the development is raised by Council’s Environmental Health Officer subject to conditions of consent to ensure the recommendations of the report are undertaken.

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

The proposal does not exceed the biodiversity offsets scheme threshold. Therefore, the proposed vegetation removal is considered acceptable.

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

BASIX Certificate 1217177M dated Friday, 25 June 2021 prepared by Greenworld Architectural Drafting has been submitted with Council and is considered to be satisfactory.

(e)     State Environmental Planning Policy (Housing) 2021 (SEPP Housing)

SEPP Housing 2021 came into force on 26 November 2021. The SEPP includes schedule 7 (Savings and transitional provisions) which states that if a DA was lodged with Council however not determined, prior to 26 November 2021, the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 continue to apply to that DA.

The current DA was accepted by Council on 31 August 2021 and as such the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 apply to the DA as follows.

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

Division 3 of the ARH SEPP was considered in the assessment of the development as it pertains to a boarding house on land zoned R3 Medium Density Residential. In addition to non-compliances with car parking, accommodation size, and the character of the local area requirements of the ARH SEPP, compliance with the Floor Space Ratio (FSR) has not been demonstrated.

Clause 29(2) Standards that cannot be used to refuse consent

Parking

Council does not support the use of car stackers in the basement level to meet with the car parking requirements. Only 15 car parking spaces can be provided, where 20 spaces are required for 40 rooms inclusive of a manager’s room. The non-compliance is not supported, and this matter is included in the reason for refusal.

Accommodation size

Where a minimum of 12m2 is required for single lodger accommodation size, rooms 14, 29 and 40 are provided with accommodation size of 10.5m2. The non-compliance is not supported, and this matter is included in the reason for refusal.

A full assessment against the ARH SEPP is provided at Attachment 5. A detailed discussion of the development against the character of the local area requirement is provided below.

Clause 30A Character of Local Area

Division 3 of the SEPP contains provisions and development standards that apply to the development for the purpose of a boarding house. The development as proposed is considered to be inconsistent with the relevant provisions and development standards of the instrument at clause ‘30A Character of the local area’. This clause specifies that ‘a consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area’.

In order to determine the compatibility of the proposal, an assessment of the character of the area and application of the ‘character test’ for development derived from the planning principle 11209 of 2005 Project Venture Development’s Pty Ltd v Pittwater Council has been undertaken.

Step 1 – Identify the local area:

The assessment identifies the local area as primarily the visual catchment of the site (as viewed from within the site and directly adjacent to the site on the street) which is shown in the following aerial view.

Figure 5 Visual catchment highlighted in ‘red’

The site is zoned R3 medium Density Residential and is located on the south side of Cameron Street. It is situated at the interface of a change in land use zone with land on the opposing side of Cameron Street being zoned R2 Low Density Residential. Development on the opposing side of Cameron Street consists of dated single dwelling houses, dual occupancy and multi dwellings developments that are one and two storeys in height. Likewise, existing development along the southern side of Cameron Street consists of older building stock including two single storey dwellings, and two multi dwelling housing developments.

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

The subject site is zoned R3 Medium Density Residential and is located on the southern side of Cameron Street between Vaughan Street to the north, a rail corridor to the east, Stone Street to the south and Woodburn Road to the west. The locality is characterised by predominantly dated low density residential dwellings and a number of dated two storey multi dwelling developments. The site is located in close proximity to public transport nodes being approximately 1.2km to both Lidcombe and Berala train stations. Development in the immediate locality consists of predominantly dated one and two storey dwelling houses.

Based on the proximity of the local area to public transport and the prevalence of older building stock, the area possesses great potential for redevelopment. Examples of this transition include town house developments at 6-8 Albert Street and 71-75 Norman Street.

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

In order to determine the compatibility of the development with the established character of a local area, the ‘character test’ derived from the Land and Environment Court’s Planning Principle and case law – Project Venture Development’s Pty Ltd v Pittwater Council can be applied. The character test determines the compatibility of the development by asking whether the physical impacts of the proposal on surrounding development is in harmony with the buildings around it and the character of the area. These questions are discussed in detail below.

Are the proposal’s physical impacts on surrounding development acceptable?

The physical impacts include constraints on the development potential of surrounding sites.

The physical impacts of the proposal are assessed having regard to the impact of the development on the amenity of surrounding properties. Amenity in this instance generally include privacy, solar access, visual bulk and compatibility in the streetscape.

With regard to privacy, it is noted that elevated private and communal open space areas are located within the western side setback and may pose a privacy impact to dwellings on the neighbouring property. Similarly, there are privacy concerns relating to the potential of overlooking occurring from the large number of windows located on the west elevation of the building. These matters have not been addressed by the applicant.

It is claimed by the applicant that the building mass (with the exception of the lift overrun) remains compliant with the 9m building height requirement however when viewing the development from all sides it appears excessively bulky due to the third storey, lack of articulation and the provision of a flat roof form. The design of the development results in an unacceptable visual bulk that is inconsistent with the desired aesthetic of medium density residential development in the area.

Based on the above discussion, the physical impact of the proposal on surrounding developments is considered unreasonable and incompatible with the character of the local area.

Step 4 - Is the proposal’s appearance in harmony with the buildings around it and the character of the street?

The building types established in the local area are made of predominantly one and two storey residential dwelling houses with a smaller number of dated multi dwelling developments scattered throughout. The three-storey appearance and visual bulk of the development is considered to be inconsistent with existing development in the catchment area based on its sheer bulk and scale. While it is acknowledged that the neighbouring development to the west contains a third level attic, it is setback from the building line is integrated into an angular roof form. These design measures minimize the visual bulk of the building mass considerably. The proposed development does not impose such measures to any substantial degree. It is also noted that insufficient articulation is provided to the street facing and west elevations which exacerbates the visual bulk of the building as described in Step 3.

Based on the above discussion, the development is not considered to be in harmony with the existing and desired residential character of the street and included as a reason for refusal.

 

 

Regional Environmental Plans

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

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

The subject site is identified as being located within the area affected by the Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005.  In accordance with ALEP, a significant part of the site is identified within the Foreshore Building Line (FBL). Insufficient information has been provided to verify the extent of conflict (if any) between the development and the foreshore building line.

Despite this, it is acknowledged that the subject water body is a concrete channel that is not publicly accessible and as such, does not conflict with the principles and requirements pertaining to Foreshores and Waterways Area.

Local Environmental Plans

Cumberland Local Environmental Plan 2021 (CLEP)

The Cumberland Local Environmental Plan 2021 (CLEP) has been gazetted on the NSW Legislation website and commenced on 5 November 2021. The CLEP 2021 is prepared to provide a single planning framework for the future planning of Cumberland City. The CLEP 2021 harmonises and repeals the three LEPs previously applicable to the Cumberland local government area, those being:

·        Holroyd Local Environmental Plan 2013,

·        Parramatta Local Environmental Plan 2011, and

·        Auburn Local Environmental Plan 2010.

However, as the subject application was lodged prior to the gazettal of the Cumberland LEP 2021, in accordance with Clause 1.8A - Savings provision relating to development applications, the application is assessed under the provisions of the Auburn LEP 2010. As the Cumberland LEP was an exhibited draft at the lodgement of the subject application, the provisions of the Cumberland LEP are also considered in the assessment of the application and are considered to be unsatisfactory.

Auburn Local Environmental Plan 2010 (ALEP)

The provision of the ALEP is applicable to the development proposal. It is noted that the development does not achieve compliance with the key statutory requirements of the ALEP and the objectives of the R3 Medium Density Residential land use zone.

(a)     Permissibility:

The proposed development is defined as a ‘boarding house’ and is permissible in the R3 Medium Density Residential zone with consent.

boarding house means a building or place—

(a)     that provides residents with a principal place of residence for at least 3 months, and

(b)     that contains shared facilities, such as a communal living room, bathroom, kitchen or laundry, and

(c)     that contains rooms, some or all of which may have private kitchen and bathroom facilities, and

(d)     used to provide affordable housing, and

(e)     if not carried out by or on behalf of the Land and Housing Corporation—managed by a registered community housing provider, but does not include backpackers’ accommodation, co-living housing, a group home, hotel or motel accommodation, seniors housing or a serviced apartment.

The relevant matters to be considered under ALEP and the applicable clauses for the proposed development are summarised below. A comprehensive LEP assessment is contained in Attachment 6.

Figure 6 – Auburn LEP 2010 Compliance Table

(b)     Clause 4.6 – Variation to Floor Space Ratio (FSR) and Building Height

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

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

Floor Space Ration (FSR)

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 boarding house is provided in response to the needs of the community identified in the submitted social impact statement. It seeks to address the issue of housing affordability faced by low to moderate income households in the locality.

With regard to the SP2 land use zone, no part of the development encroaches this part of this site.

Planner’s comment: The development proposes a boarding house which satisfies the objectives of the R3 land use zone by catering to housing needs of the area and providing a variety of housing types in the respective land use zone.

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

Applicant’s justification: The objectives of the development standard 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.

With regard to objective (a), the exceedance of the FSR development standard will not set an undesirable precedent as it is isolated in nature and of comparable scale within the street. The FSR of the development is consistent with the neighbouring development at 6-10 Cameron Street (DA/540/02) approved on 21 November 2003 with an approved FSR of 0.92:1.

With regard to objective (b), there is a high demand for affordable residential accommodation in Lidcombe and the proposed boarding house is designed in response to the lack of housing options available for low to medium income households.

Planner’s comment: The development does not satisfy objective (a) of the development standard as it establishes an inappropriate development density that would set an undesirable precedent for future development to follow. In this regard, 27% of the GFA equates to 236.25sqm which in this instance is comparable in size to the entire area of the third level. The extent of the non-compliance in this regard is considered excessive and unreasonable in this instance and is therefore not supported.

The applicant makes reference to the neighbouring development to the west which is a three-storey townhouse development. It is noted that this development was approved in accordance with superseded planning instruments and on this basis along, a comparison between the two developments is considered unreasonable. Notwithstanding, it is noted that the neighbouring development was approved with a fully compliant FSR of “0.7:1 plus loft”.

It is considered that the intensity of the proposed development is not reflective of the locality noting the excessiveness of the non-compliance as noted above. 

3.

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

Applicant’s justification: It is the onus of the Council to form an opinion of satisfaction that the written request demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case.

Planner’s comment: Compliance with the development standard is considered reasonable and necessary in the circumstances of the case. As noted previously, the extent of the deviation is excessive, resulting in an unacceptable bulk and scale that is inconsistent with the existing and desired scale of development in the catchment area.

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

Applicant’s justification: The development is will integrate seamlessly with the streetscape which contains an approved three storey townhouse development with a higher non-compliant FSR. View loss, solar access and privacy is mitigated by unique shape and isolated location of the site.

Planner’s comment: Contravention of the development standard is not justified in this instance as the FSR of the development is considered to be excessive and the resulting bulk is inconsistent with existing and desired built form in the area. Moreover, the neighbouring development was approved with a fully compliant FSR. It is therefore considered that the applicant’s argument is not well founded and there are insufficient planning grounds to contravene the development standard.

Conclusion:

The applicant’s written request has not adequately addressed the matters required to be demonstrated by clause 4.6 subclause (3). It is considered that the proposed development will not be in the public interest because it is inconsistent with the objectives of the particular standard that applies to the site.

It is the view of Council Officers that justification provided is unsatisfactory and having considered the application on its merit, the exception to the Floor Space Ratio development standard is considered unacceptable in this instance.

Building height

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 boarding house is provided in response to the needs of the community identified in the submitted social impact statement. It seeks to address the issue of housing affordability faced by low to moderate income households in the locality.

With regard to the SP2 land use zone, no part of the development encroaches this part of this site.

Planner’s comment: The development proposes a boarding house which satisfies the objectives of the R3 land use zone by catering to housing needs of the area and providing a variety of housing types in the respective land use zone.

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

Applicant’s justification: The objectives of the development standard are as follows:

(a)     to establish a maximum height of buildings to enable appropriate development density to be achieved, and

(b)     to ensure that the height of buildings is compatible with the character of the locality.

The proposed building height is of a reasonable scale with articulation features mitigating any bulk impact.

Planner’s comment: It is noted that the existing ground level is not shown on the elevations and sectional drawings of the development. Notwithstanding, a line is shown indicating the extent of the maximum building height on the elevation drawings which suggests that the lift overrun is situated 500mm above the permitted building height. This appears to be accurate based on a comparison with the reduced levels shown in the submitted survey plan. It is considered that the development as proposed is inconsistent with the objectives of the development standard as the resulting bulk and scale of the development is found to be incompatible with the character of the locality as discussed in detail under the ‘Planning Comments’, section part ‘(f)’ of this report.

3.     

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

Applicant’s justification: Objectives of the development standard are achieved despite the non-compliance and on this basis, the amendment of the development to comply is unreasonable in this instance.

Planner’s comment: It is considered reasonable to require the development to comply with the development standard noting that a three storey building is proposed and the relevant building height control in the Multi Dwelling Housing part of ADCP only permits development to be a maximum of two storeys. In this regard, a reduction from three to two storeys to address the non-compliance with the ADCP control would is likely to result in full compliance with the development standard. On this basis, it is considered fair and reasonable to require the full compliance with the development standard to be achieved.

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

Applicant’s justification: The development is designed to complement the existing scale and character of the surrounding development, will integrate seamlessly with the existing streetscape, does not result in adverse amenity impacts and the lift overrun poses a minor visual impact. On this basis, there are sufficient planning grounds to justify contravention of the development standard.

Planner’s comment: The development as proposed poses a significant visual impact resulting from the bulk and scale of the building envelope and the three storey appearance. The result is a development that is inconsistent in scale and appearance with the existing and desired character of the area as discussed under the ‘Planning Comments’ section part ‘(f)’ of this report. It is therefore considered that the applicant’s written justification is not well founded and shall form part of reasons for refusal.

Conclusion:

The applicant’s written request has not adequately addressed the matters required to be demonstrated by clause 4.6 subclause (3). It is considered that the proposed development will not be in the public interest because it is inconsistent with the objectives of the particular standard that applies to the site.

It is the view of Council Officers that justification provided is unsatisfactory and having considered the application on its merit, the exception to the Height of Buildings development standard is considered unacceptable in this instance.

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

(a)     Draft State Environmental Planning Policy (Environment)

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

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

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

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

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

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

·                 Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005

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

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

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

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

Cumberland Development Control Plan (DCP) 2021

The Cumberland DCP 2021 is in force as of 5 November 2021. However, as the subject application was lodged prior to the Cumberland DCP coming into force, in accordance with Clause 1.1.4 - Savings provision of Part A - Introduction, the application is assessed under the provisions of the Auburn DCP 2010 As the Cumberland DCP 2021 was adopted by Council at the lodgement of the subject application, the provisions of the Cumberland DCP are also considered in the assessment of the application and are considered to be unsatisfactory.

Auburn Development Control Plan (DCP) 2010

The Auburn Development Control Plan 2010 provides guidance for the design and operation of development to achieve the aims and objectives of the Auburn Local Environmental Plan 2010. Auburn DCP section does not contain provisions regarding boarding houses and assessment is carried out based on the typology of the development within the subject land, which multi dwelling housing.

The following table highlights non-compliances with the DCP, which relate to number of storeys, floor to ceiling heights, building articulation and landscape area. The variations sought are considered unsatisfactory:

Figure 7 – Auburn Development Control Plan 2010

Multi Dwelling Housing Compliance Table

As indicated in the compliance table above, the proposed development departs from the Multi Dwelling Housing provisions of Council’s Auburn Development Control Plan 2010. The siting, bulk and scale and streetscape provisions of the Multi Dwelling Housing part of ADCP is relevant to the proposal as the subject site is zoned R3 Medium Density Residential. Compliance with these provisions will ensure the design of the development is sympathetic to the design and scale of residential development in the prescribed land use zone. A comprehensive assessment and compliance table is contained in Attachment 7.

The following table highlights non-compliances with the DCP, which relate to vehicle access and internal circulation. The non-compliances are considered unsatisfactory:

 

 

Parking and Loading Compliance Table

The following table highlights non-compliances with the DCP which relate to stormwater drainage, design of the basement drainage system, On-Site Detention (OSD) and the required setback of the development to Haslam’s Creek. The non-compliances are considered unsatisfactory:

 

Stormwater Drainage Compliance Table

Clause	Control	Proposed	Complies
3.2 Connection to Council and Sydney Water underground drainage systems	All connections to the stormwater network are in accordance with Council and Sydney Water standards and specifications.	No – A connection to Sydney Water’s system is proposed.   Council’s Development Engineer has indicated that the submitted stormwater design does not comply.   Sydney Water has advised that there is no objection to connecting the development to Sydney Water’s stormwater system however, the development must comply with Sydney Water’s connection requirements and On-Site Detention requirements.   The proposed development does not demonstrate compliance with the above.	No
3.6 Pumped discharge	Use of pumps shall not be permitted except to drain an underground parking area of a proposed development, and the only inflow is seepage and runoff from an access driveway. The area of the driveway shall be kept to a minimum. The potential catchment contributing runoff to the basement shall not exceed 5% of the basement area or 60m2 whichever is the greater.	No – A pump out system is proposed to drain the basement level carpark.   Council’s Development Engineer has indicated that the proposed basement drainage system does not comply the Council’s DCP requirements. In this regard, above ground storage volume shall be provided.   It is further noted that additional information is required for assessment including pump out tank design calculations.	No
5.1 Provision of on-site detention	Developments requiring OSD OSD shall be required for all proposed development, re-development or new land subdivisions	No – The engineering plans show an underground rainwater tank is proposed in the rear setback.   Council’s Development Engineer has advised that no variation to the OSD requirement is supported and Sydney Water consent is required for a variation.   Sydney Water has noted that the development would need to demonstrate compliance with Sydney Water’s connection and On-Site Detention requirements.   Compliance with the above requirements has not been demonstrated.	No
5.4 Providing storage	Storage may be provided underground in tanks, aboveground as a shallow pond on a driveway, or as a combination of underground and aboveground storage.	No – Council’s Development Engineer has indicated that aboveground storage volume is to be provided with respect to the basement.   Compliance with the above requirement has not been demonstrated.	No
6.1 General requirements	A 30m setback from the mean high water mark applies to properties fronting Duck River north of Carnarvon Street 15m south of Carnarvon Street and 10m to Haslam’s Creek.	No - Council’s Development Engineer has indicated that compliance with the 10m setback to the mean high water mark is required.   Insufficient information has been submitted to verify the proposed setback however compliance is unlikely due to the proximity of the development to the edge of the concrete channel that defines Haslam’s Creek.	No
6.2 Fencing	An applicant shall demonstrate that the fence would create no impediment to the flow of floodwaters. Appropriate fences may include: An open collapsible hinged fence structure or pool type fence; Other than a brick or other masonry type fence (which will generally not be permitted); or A fence type and siting criteria as prescribed by Council.	No – Insufficient details regarding the design of fencing has been provided.   Sydney Water has specified design requirements for fencing located along Sydney Water’s stormwater channel.	No

The following table highlights a non-compliance with the DCP, which relates to the protection of trees on the surrounding properties. The non-compliance is considered unsatisfactory:

Tree Preservation Compliance Table

Clause	Control	Proposed	Complies
3.0 Development controls	A Tree Management Plan may be required with the development application for any development that will impact on trees on the site or adjoining sites. This plan shall be prepared by a qualified arborist to survey and assess existing vegetation both on the site and surrounding the site (within at least 5m of all boundaries i.e. inclusive of off-site areas).	No – A marge mature tree is located in the rear yard of the neighbouring property to the west and is likely to be impacted due to its proximity to the shared boundary. The condition and potential impact of the development on the tree has not been addressed by the applicant.   In this regard, Council’s Landscape Officer has requested an arborist report to assess the impact of the development on the tree.	No

The following table highlights non-compliances with the DCP, which relates to the handling and disposal of waste associated with the demolition and construction phases and the operation of the boarding house. The non-compliances are considered unsatisfactory:

Waste Compliance Table

Having regard to the above noted departures of ADCP, it is considered that the proposal performs unsatisfactorily from an environmental planning viewpoint. These matters are included in the reasons for refusal.

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 concerns as to the relevant matters arising from the Environmental Planning and Assessment Regulations 2000 (EP&A Reg). In this regard, insufficient information was submitted to accurately determine building heights and the setback from structures of the development to the mean high water mark and the matter is included as a reason for refusal.

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

It is considered that the proposed development will have significant adverse environmental and social impacts in the locality due to inappropriate scale of the development that is out of character with the existing and desired character of the locality.

 

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

The subject site and locality are known to be affected by natural hazards and site constraints that are likely to have a significant adverse impact on the proposed development including its proximity to Haslam’s Creek. This matter has not been addressed to the satisfaction of Council’s Development Engineer.

Accordingly, it is considered that the development is unsuitable 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 DCP 2010, the proposal was publicly notified for a period of 14 days between 6 October 2021 and 20 October 2021. The notification generated 44 unique submissions in respect of the proposal. The issues raised in the public submissions are summarised and commented on as follows:

Figure 8 – Submissions summary table

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

In view of the foregoing analysis, it is considered that the development as proposed would not be consistent with the public interest.

CUMBERLAND LOCAL INFRASTRUCTURE CONTRIBUTIONS PLAN 2020

The development would require the payment of contributions in accordance with Cumberland Local Infrastructure Contributions Plan 2020. Should the proposal be supported, contribution amount would be conditioned as part of the consent.

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 Policy (Housing) 2021 (SEPP Housing), State Environmental Planning Policy (Affordable Rental Housing) 2009 (ARH SEPP), State Environmental Planning Policy No. 55 – Remediation of Land (SEPP 55), State Environmental Planning Policy (Infrastructure) 2007 (ISEPP), State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005, Auburn Local Environmental Plan 2010, Auburn Development Control Plan 2010, Cumberland Local Environmental Plan 2021 and Cumberland Development Control Plan 2021 and is considered to be unsatisfactory for approval subject to reasons for refusal.

Having regard to the relevant matters of consideration under Section 4.15 of the Environmental Planning and Assessment Act 1979, it is considered that the proposed development is unacceptable for the reasons outlined in this report. It is recommended that the development application be refused.

 

 

 

 

 

 

Report Recommendation: 1.      That the Clause 4.6 variation requests to vary the Floor Space Ratio and Height of Buildings development standards, pursuant to the Auburn LEP 2010 is not supported. 2.      That Development Application No. DA2021/0462 for Demolition of existing structures and construction of a three-storey boarding house, comprising 40 boarding rooms (inclusive of a manager's room) over basement parking on land at 2 Cameron Street LIDCOMBE  NSW  2141 be Refused subject to reasons listed in the attached schedule. 3.      Persons whom have lodged a submission in respect to the application be notified of the determination of the application.

 

1.      Draft Notice of Determination  

2.      Architectural Plans  

3.      Stormwater/Engineering Plans  

4.      Submissions Received  

5.      SEPP (Affordable Rental Housing) 2009 Assessment  

6.      Auburn LEP Assessment  

7.      Auburn DCP Assessment  

8.      4.6 Request Building Height  

9.      4.6 Request Floor Space Ratio  

10.    Draft Reasons for Refusal   

 

Attachment 1

Draft Notice of Determination

 9 February 2022

Attachment 2

Architectural Plans

 9 February 2022

Attachment 3

Stormwater/Engineering Plans

 9 February 2022

Attachment 4

Submissions Received

 9 February 2022

Attachment 5

SEPP (Affordable Rental Housing) 2009 Assessment

 9 February 2022

Attachment 6

Auburn LEP Assessment

 9 February 2022

Attachment 7

Auburn DCP Assessment

 9 February 2022

Attachment 8

4.6 Request Building Height

 9 February 2022

Attachment 9

4.6 Request Floor Space Ratio

 9 February 2022

Attachment 10

Draft Reasons for Refusal

 9 February 2022

 9 February 2022

Item No: LPP002/22

Development Application for 2-8 Vaughan Street and 1 Kerrs Road, Lidcombe

Responsible Division:                    Environment & Planning

Officer:                                              Executive Manager Development and Building

File Number:                                    DA2021/0649  

 

 

1.      Development Application 2021/0649 was accepted on Friday 26 November 2021 for alterations and additions to the approved 10 storey mixed use development including two additional storeys to Building B comprising of 19 apartments and rooftop communal open space including associated amendments to the basement level car parking.

2.      The application was publicly notified to occupants and owners of the adjoining properties for a period of fourteen (14) days between Friday 3 December 2021 and Friday 17 December 2021. In response, thirteen (13) submissions were received.

3.      The variations are as follows:

 

4.      The development application is referred to the Panel as the proposal is an apartment building for which State Environmental Planning Policy 65 “Design Quality of Residential Apartment Development” applies and the number of unique submissions exceed ten (10).

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

Subject Site and Surrounding Area

The subject site is legally described as Lot 1, 2, 5 and 6 Sec 8 in DP 3424, Lot C, D in DP 416771, Lot A and B in DP 432751 and is known as 2 - 8 Vaughan Street & 1 Kerrs Road Lidcombe. The site is located on the south west corner of Vaughan Street with Joseph Street. The site comprises of 8 lots in total, forming an irregular shaped configuration with a frontage width of 73.585 metres to Vaughan Street, 20.115 metres to Joseph Street and 60.35 metres to Kerr’s Road. The site has an area of 2,736 square metres.

A ten storey mixed use development with a three storey basement car park is presently being constructed on site. Building A is the smaller tower at the western part of the site while building B forms the larger building at the eastern part of the site.

The site is situated within the Lidcombe Town Centre on the southern side of the Lidcombe Railway Station. The immediate locality has been the subject of significant redevelopment and a number of low to mid rise residential and mixed use developments exists within close proximity of the site including:-

·        2 Kerrs Road to the south.

·        8 to 12 Kerrs Road to the south.

·        17 to 25 and 29 to 33 Kerrs Road to the south west.

·        10 to 16 Vaughan Street to the west.

A large expansive car park area is situated to the north of the site along the northern side of Vaughan Street that operates in conjunction with a function centre and retail/business uses. Wellington Park is situated to the east of the site on the eastern side of Joseph Street. The park incorporates a local heritage item being the Lidcombe War Memorial Statute.

The site is identified on the map below:

The zoning of the land is provided below.

Photos of the site are provided below.

Description of the Development

Development application 2021/0649 is proposing alterations and additions to an approved mixed use commercial / retail / apartment building across the site. The original development comprising of two buildings known as Building A and Building B was approved under development consent 2014/347. That approval comprised the following:-

·        A ten (10) storey mixed use development consisting of Buildings A and B comprising of commercial and retail premises on the ground floor and apartments above.

·        A total of 131 apartments consisting of 38 x 1 bedroom apartments, 51 x 2 bedroom apartments and 42 x 3 bedroom apartments.

·        A three level basement car park for 255 vehicles.

The development application proposes the following additional works to the approved development.

·        Construct an additional two storeys to (Building B) comprising of 19 apartments including 7 x 1 bedroom apartments, 6 x 2 bedroom apartments and 6 x 3 bedroom apartments.

As a result of the above, the development will now feature 150 apartments comprising of 43 x 1 bedroom apartments, 59 x 2 bedroom apartments and 48 x 3 bedroom apartments.

·        Provide 914 square metres of common open space on the rooftop level of Building B accessible via two lifts.

·        Modify basement car park Level 3 which includes a reshuffle of car parking spaces and additional storage rooms to accommodate the additional apartments to be constructed. The number of car parking spaces within the development remains the same at 255 spaces to support the 150 apartments.

The development will have a feature a gross floor area of 13,661 square metres resulting in a floor space ratio of 4.993:1 and a maximum building height of 39.439 metres to the topmost part of the fire stair / lift shaft for Building B.

There are no changes to the commercial component of the development and no changes to the number of car spaces required to support the commercial land uses on site.

A similar proposal was referred to the Design Review Panel during 2020 and Council received appropriate advice. Correspondence is available on Council records demonstrating that the current design was not required to be referred a second time to the Design Review Panel for assessment.

History

·        Development Application 287/2011

The Joint Regional Planning Panel, at its meeting of Thursday 9 August 2012 resolved to approve Development Application 287/2011 as a deferred commencement consent for the demolition of existing structures and construction of an 8 storey mixed use development comprising of 108 residential apartments and 16 ground floor commercial tenancies over 2 levels of basement carparking with stormwater and landscaping works and strata subdivision subject to conditions.

The deferred commencement consent became operational on Wednesday 19 December 2012.

·        Development Application 287/2011/A

On Thursday 17 July 2014, the Joint Regional Planning Panel resolved to approve a section 96 modification application 287/2011/A to modify the layout of the ground floor & basement car park levels and construct an additional basement car park level within the development subject to conditions.

·        Development Application 2014/347

On Monday 8 June 2015, the Joint Regional Planning Panel resolved to grant deferred commencement consent for alterations and additions to the approved 8 storey mixed use development over 3 basement carpark levels subject to conditions.

The deferred commencement consent issued required the top two floors of the development to be removed.

The operational consent was granted on Wednesday 12 August 2015.

·        Development Application 2021/332

The development application was lodged on Thursday 24 June 2021 for the construction of two additional residential levels across Buildings A and B but was withdrawn on Thursday 5 August 2021 because it was relying on the draft Cumberland Local Environmental Plan that had not been gazetted at that time.

Construction works

Construction works on both buildings A and B has commenced and significant works have already been completed to both to towers.

·        Development Application 2021/649

 The latest development application was accepted by Council on Friday 26 November 2021 following the gazettal of the Cumberland Local Environmental Plan. The development application was notified between Friday 3 December 2021 and Friday 17 December 2021 and thirteen (13) submissions were received.

Applicants Supporting Statement

The applicant has provided a Statement of Environmental Effects prepared by Think Planners and dated November 2021 which was accepted by Council on Friday 26 November 2021.

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 conditions.

Environment and Health

The development application was referred to Council’s Environment and Health Officer for comment who has advised that the development proposal is satisfactory subject to a condition requiring the acoustic report to be complied with.

External Referrals

The development application was not required to be referred to any external government authority for comment or assessment.

Planning Comments

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

State Environmental Planning Policies

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

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

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

(b)     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. A design statement addressing the design quality principles prescribed by SEPP 65 was prepared by the project architect. Integral to SEPP 65 is the Apartment Design Guide (ADG) which sets benchmarks for the appearance, acceptable impacts and residential amenity of the development.

The development is compliant with most of the provisions except those specified below. A detailed assessment is contained at Appendix C.

The variations presented above are described below.

1 - Part 3F - Visual Privacy and Separation Distances - The following setbacks are required:-

For buildings over 25 metres or 9 storeys.

·        12 metres - habitable rooms to a boundary.

·        6 metres for non habitable rooms to a boundary.

(Distances between buildings on the same site to be combined depending on type of room).

The west facing balconies and windows of apartments numbered B1009 and B1109 are setback 6 metres from the western property boundary being 17 to 25 Kerrs Road which is a variation of 6 metres.

The building situated at 17 to 25 Kerrs Road to the west is eight (8) storeys in height and is a recent addition to the Lidcombe Town Centre. The mixed use commercial / residential tower is unlikely to be the subject of further development given its built form and level of servicing provided.

The separation distance between the buildings being 17 to 25 Kerrs Road and 2 to 8 Vaughan Street and 1 Kerrs Road varies as follows:-

·        11.54 metres between buildings for the first four storeys.

·        17 to 17.94 metres between buildings for the upper four levels due to the building at 17 to 25 Kerrs Road being stepped away from the side boundary.

The two new levels proposed for Building B at 2 to 8 Vaughan Street and 1 Kerrs Road are situated three and four storeys higher than the building situated at 17 to 25 Kerrs Road. Apartments numbered B1009 and B1109 will be provided with view lines across the roof of the building and not into specific apartments, common areas or private spaces below.

As such, the location of the balconies and the two western kitchen windows of apartments B1009 and B1109 are satisfactory in this instance as a privacy concern does not arise.

The applicant will support the use of additional privacy measures for the balconies such as privacy screens and raised window sills for the affected windows which is addressed at condition numbered 7 to reduce the likelihood of residents looking down onto the building below.

2 - Part 4A-1 - Solar and daylight access - A maximum of 15% of apartments may receive no sunlight at the winter solstice.

Comment

The development application proposes an additional nineteen (19) apartments to be constructed within the approved development now under construction. Of this figure, at least sixteen (16) apartments will receive adequate sunlight at the winter solstice due to satisfactory orientation or provision of skylights. There is a minor variation of 0.8% which is not significant.

Presently, at least 18.3% or 24 of the total number of apartments do not receive adequate sunlight at the winter solstice which is based on an approved development with 131 apartments.

As a result of the change sought, the total number of apartments across the entire development that does not receive sunlight is 27 or 18%. The variation in percentage terms is reduced slightly by 0.3% and as such, the development may be accepted on the grounds that the variation is marginally reduced.

3 - Part 4E-1 - Private open space and balconies - A three bedroom apartment should be provided with a balcony occupying an area of 12 square metres.

Comment

The balconies for apartments numbered B1003 and B1103 have areas of 10 square metres instead of 12 square metres. The applicant has provided the following response in relation to the variation:-

·        The balconies of the apartments immediately below have similar sizes which have been approved and now mostly constructed.

·        The layout and design of the apartment ensures that the principles implicit in the ADG are met. In particular, the balconies are a generous extension to the primary living area and the balcony is well proportioned and functional. The proposal is entirely consistent with the principles of the Apartment Design Guide. Any increase in the balcony size would not have any significant improvement with respect to the inter-relationship between living room and balcony.

Planning comments

A variation of 2 square metres or 16.6% exists for both balconies and it is identified that:-

·        The position of the balconies and their size replicates what has been approved and constructed below.

·        It is feasible to alter the dividing wall between apartments B1002, B1003 and B1102 and B1103 to create a larger balcony for the affected apartments but this will result in a smaller balcony for Apartments B1002 and B1103 and impact the windows and built form of the adjoining apartments. This will also have an adverse impact on the finished appearance of the east facing façade of the building facing Joseph Street.

It is considered appropriate to support the variation in this instance given that a uniform building design facing Joseph Street is retained for the upper two floors and consistent with the built form provided below.

The development application is compliant with the remaining provisions of the Apartment Design Guide.

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

The provisions of State Environmental Planning Policy (Infrastructure) 2007 have been considered in the assessment of the development application. It is identified that Vaughan Street is a Classified Regional Road (Number 2096) connecting Lidcombe with Guildford. As such Clause 101, 102, 104 and Schedule 3 are required to be considered.

In this application, it is identified that the basement car park is already constructed and there is no increase in the number of car parking spaces provided within the development. There are no changes as to how vehicle ingress and egress is achieved.

Olympic Drive is situated close to the development site however, the site is situated more than 90 metres from the road corridor. Olympic Drive carries more than 20,000 vehicles per day based on average daily counts. It is considered that formal referral to Transport for New South Wales is not required on the grounds that the thresholds under Clause 104 and Schedule 3 are not achieved.

The applicant has submitted an acoustic report prepared by Acoustic Logic and dated Friday 26 March 2020. The report addresses noise requirements under State Environmental Planning Policy Infrastructure and road noise scenarios. The report is required to be incorporated into any consent that may be issued.

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

BASIX Certificate Number 384328M-09 and dated Monday 15 November 2021 prepared by EPS has been submitted to the Council for assessment and determined as being satisfactory.

Regional Environmental Plans

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

Sydney Regional Environmental Plan 2005 (Sydney Harbour Catchment)

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

Local Environmental Plans

The provision of the Cumberland Local Environmental Plan 2021 is applicable to the development application. The development application primarily seeks to increase the overall number of apartments within the approved development. This will in turn increase the floor space ratio and number of storeys of Building B by an additional two storeys. This is discussed in further detail at Appendix A in relation to its compliance with the Plan.

It is noted that the development achieves compliance with the key statutory requirements of the Cumberland Local Environmental Plan 2021 and the objectives of the B4 Mixed Use zone.

(a)     Permissibility:

The proposed development is defined as “Shop top housing” defined as:-

“One or more dwellings located above ground floor retail premises or business premises”.

“Note:- Shop top housing is a type of residential accommodation See the definition of that term in this Dictionary”.

Permissibility must be established via this approach given that “Residential flat buildings” are now a prohibited form of development in the B4 Mixed Use zone. Given that there are approved shops on the ground floor and all the apartments are situated above the ground floor, Council officers may establish permissibility via this approach.

The relevant matters to be considered under the Cumberland Local Environmental Plan 2021 and the applicable clauses for the proposed development are summarised below. A comprehensive LEP assessment is contained in Appendix B.

(b)     Clause 4.6 - Variation to building height

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

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

The 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

In relation to the provisions of Clause 4.5(4)(a)(ii) the consent authority can be satisfied that the development including the numerical building height departure is in the public interest.

The proposed development remains consistent with the objectives of the building height control and the proposal is consistent with the B4 zone objectives as follows:-

·        To provide a mixture of compatible land uses.

·        To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.

The development:

·        Provides a mixture of compatible land uses being commercial and residential.

·        Integrates residential and commercial development in an accessible location within the Lidcombe Town Centre to encourage public transport and encourage walking and cycling.

·        Provides high density residential development.

·        Provides an active ground floor and quantum of commercial floor space.

The development is clearly in the public interest because it is consistent with the objectives of the building height standard, the objectives of the B4 zone and the numerical departure from the building height control.

Planner’s comment:

It is identified that the development:-

·        Is compatible with the land uses of a town centre location.

·        Integrates a mix of land uses ranging from commercial / retail to residential uses across the same site.

·        Encourages high density residential development close to a rail station and services of the Lidcombe Town Centre.

·        Generally, supports the objectives of the B4 Mixed Use zone.

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

Applicant’s justification

The objectives of the height standard are:-

(a) to establish a maximum height of buildings to enable appropriate development density,

(b) to ensure that the height of buildings is compatible with the character of the locality,

(c)  to minimise the visual impact of development,

(d) to ensure sufficient solar access and privacy for neighbouring properties

The proposal despite the numerical non compliance remains consistent with the objectives based on the following:

·        The building height, bulk and scale are compatible with the desired future character of the locality and in particular, the height limit of 38 metres is complied with except for the fire stair and lift overrun.

·        The additional height proposed enables the development to achieve the 5:1 FSR on the site that is desirable given the Town Centre context and proximity to the railway line.

·        The location and distribution of the additional height has no discernible additional impact in terms of visual privacy and overshadowing when having regard to the lot orientation.

·        The development provides for a high quality urban form for the development and the fire stairs location is visually obscured and not discernible from public places.

·        The fire stair intrusion beyond the 38m height of building has no impact in terms of shadowing or privacy to neighbouring properties.

As outlined above, the proposal remains consistent with the underlying objectives of the control and compliance is considered unnecessary or unreasonable again reiterating the variation to the control is a technical departure and is a temporal issue.

Planner’s comment:

The following comments are made:-

·        The height of the development is generally consistent with the height provisions of the Cumberland Local Environmental Plan at Clause 4.3.

·        The variations are limited to the lift overrun and fire stairs of building B that provides access to the rooftop common open space and facilities required by the residents.

·        The site benefits from being close to the Lidcombe Railway Station and associated public transport services including access to the nearby Sydney Olympic Park.

·        The development provides for an adequate level of servicing to sustain the increases that are sought.

3.     

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

In accordance with the provisions of the clause, it is considered that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case as the underlying objectives of the control are satisfied as discussed above in Part 2.

Planner’s comment:

It is identified that the development largely achieves compliance with most remaining controls that apply to the site and an adequate level of servicing is achieved. On the grounds identified, compliance with the development standard is considered 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?

Applicant’s justification

·        The proposal satisfies the objectives of the B4 zone and the objectives of the building height standards.

·        Non-compliance with the standard does not contribute to adverse environmental impacts in terms of overshadowing, visual impacts or view loss.

·        The development as proposed is consistent with the provisions of orderly and economic development.

·        The departure permits the orderly and economic development of land and furthers the objects of the Environmental Planning and Assessment Act 1979, notably (c), (d), and (g); and

·        The departure enables the provision of the rooftop common open space area which is a positive outcome to enhance amenity for residents with access to the rooftop area. This is appropriate in a high density context in a Town Centre location.

Planner’s comment:

It is considered that there are adequate environmental planning grounds to justify contravening the height of the development standard for the following reasons.

·        The proposal satisfies the objectives of the B4 zone and the objectives of the building height standards.

·        The shadowing created by Building A will not be changing from the approval given.

·        The shadowing created by Building B will increase further with the largest increase occurring to the south and across the northern wall of the mixed use apartment building situated at 2 to 4 Kerrs Road. At 12 noon on June 21, the approved shadow extended to Level 5 of that building. As a result of the development, the shadowing will now extend up to Level 7 of that development. The shadow created by the development will extend across most if not the entire building by 3 pm which is the same as the previous approval given.

The increase in shadowing is most apparent across the 5th to the 7th level of that building situated at 2 to 4 Kerrs Road. The shadowing across the lower levels will not be changing from the approval given.

All the apartments across Levels 5 to 7 will receive sunlight between 9 am and 10 am but sunlight declines thereafter. The building at 2 to 4 Kerrs Road is separated from the development by the Kerrs Road carriageway and the north facing apartments will continue to receive adequate daylight and ventilation due to the 13 to 14 metre separation between buildings created by the road carriageway. While there is an increase in the level of shadowing created by the additional height, the increase is considered as being acceptable given how the wide spaces between buildings function.

·        The variation enables the provision of the rooftop common open space area for the residents of both buildings which is appropriate for the location.

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 of Clause 4.3 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))

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))

The Cumberland Development Control Plan 2021 provides guidance for the design and operation of development to achieve the aims and objectives of the Cumberland Local Environmental Plan 2021.

A comprehensive assessment and compliance table is contained at Appendix B attached. It is identified that the development achieves full compliance with the relevant provisions of the Cumberland Development Control Plan and the development is considered acceptable from an environmental planning viewpoint.

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 Cumberland Development Control Plan, the development application was publicly notified for a period of fourteen (14) days between Friday 3 December 2021 and Friday 17 December 2021. During the notification period, Council received thirteen (13) submissions, of which eleven (11) are unique submissions. The issues raised in the public submissions are summarised and commented on as follows:

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.

CUMBERLAND LOCAL INFRASTRUCTURE CONTRIBUTIONS PLAN 2020

A contribution is required to be paid in accordance with Cumberland Local Infrastructure Contributions Plan 2020. The amount of contribution payable is $287,284. Condition 11 attached to the recommendation addresses the contributions that are payable.

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 and the following:-

·        State Environmental Planning Policy No. 55 - Remediation of Land.

·        State Environmental Planning Policy No. 65 - “Design Quality of Residential Apartment Development” and the Apartment Design Guide.

·        State Environmental Planning Policy (Infrastructure) 2007.

·        State Environmental Planning Policy (Building Sustainability Index) BASIX 2004.

·        Cumberland Local Environmental Plan 2021.

·        Cumberland Development Control Plan 2021.

The development is considered to be satisfactory for approval.

The proposed development is appropriately located within the B4 Mixed Use zone under the provisions of the Cumberland Local Environmental Plan 2021. However, a variation in relation to Clause 4.3 Building Height Limit of the Cumberland Local Environmental Plan 2021 is sought.

Having regard to the assessment of the proposal from a merit perspective, Council may be satisfied that the development has been responsibly designed and provides for acceptable levels of amenity for future residents. It is considered that the proposal successfully minimises adverse impacts on the amenity of neighbouring properties. Hence the development, irrespective of the 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: 1.       That the Clause 4.6 variation request to vary the height standard of Clause 4.3 pursuant to the Cumberland LEP 2021 be supported. 2.       That Development Application 2021/0649 for alterations and additions to the approved 10 storey mixed use development (DA-347/2014) including two additional storeys to Building B comprising of 19 residential apartments and rooftop communal open space including associated amendments to the basement level car parking. on land at 2 to 8 Vaughan Street Lidcombe be approved subject to conditions. 3.       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.      Appendix A - Cumberland Local Environmental Plan 2021 Assessment  

3.      Appendix B - Cumberland Development Control Plan Assessment and Appendix C - Apartment Design Guide Assessment  

4.      Submissions Received  

5.      Clause 4.6 Variation  

6.      Architectural Plans, Shadow Diagrams and Landscape Plans  

7.      Draft Reasons for Recommendation   

Attachment 1

Draft Notice of Determination

 9 February 2022

Attachment 2

Appendix A - Cumberland Local Environmental Plan 2021 Assessment

 9 February 2022

Attachment 3

Appendix B - Cumberland Development Control Plan Assessment and Appendix C - Apartment Design Guide Assessment

 9 February 2022

Attachment 4

Submissions Received

 9 February 2022

Attachment 5

Clause 4.6 Variation

 9 February 2022

Attachment 6

Architectural Plans, Shadow Diagrams and Landscape Plans

 9 February 2022

Attachment 7

Draft Reasons for Recommendation

 9 February 2022

 9 February 2022

Item No: LPP003/22

Development Application for 7 Birmingham Street, Merrylands

Responsible Division:                    Environment & Planning

Officer:                                              Executive Manager Development and Building

File Number:                                    DA2021/0298  

 

 

1.      Development Application No. DA2021/0298 was accepted on 11 June 2021 for the demolition of existing structures and the construction of a part four, part five storey residential flat building for 8 units including undercroft at-grade parking (pursuant to the SEPP (Affordable Rental Housing) 2009.

2.      The application was publicly notified to occupants and owners of the adjoining properties for a period of twenty one (21) days between 16 July 2021 and 6 August 2021. In response, one (1) submission was received.

3.      The subject site is not listed as a heritage item or located within the heritage conservation area in the Holroyd Local Environmental Plan 2013.

4.      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, State Environmental Planning Policy (Affordable Rental Housing) 2009, Holroyd Local Environmental Plan (HLEP) 2013 and Holroyd Development Control Plan (HDCP 2013).

5.      The notable variations are as follows:

6.      The application is referred to the Panel as it is a residential flat building development of 4 or more storeys to which the State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Developments applies with contravention of the building height development standard over 10%.

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

Subject Site and Surrounding Area

The subject site is known as 7 Birmingham Street, Merrylands and is legally described as Lot 34, Section 1 in DP 5714. The subject site is located on the northern side of Birmingham Street, Merrylands. The site is rectangular in shape with a frontage of 15.24m to Birmingham Street (replicated for the rear boundary) and side boundary dimensions of 40.235m for a total site area of 613.2m². The land falls to a low point within the easement on the western boundary, rising approximately 0.8 to the front south-western corner and 1.2m to the rear north-western corner at a gentle grade.

The subject site has a Council’s drainage easement which traverses in a south-eastern to north western direction across the site as detailed in the below survey image. Further to this the site is currently occupied by a single storey dwelling house, detached carport and associated hard stand space. The site contains no trees or significant landscape features. The site is subject to stormwater overland flows and flooding, which includes land within each of the high flood, medium flood and low flood risk precincts.

Surrounding the subject site is a mixture of building types including residential flat buildings from 2 to 4 storeys in height and single storey dwellings.

Figure 1 – Existing Council’s drainage easement location.

Figure 2 – Aerial view of subject site

Figure 3 – Zoning map

Figure 4 – Street view of subject site

Description of the Development

Council has received a development application for demolition of existing structures and the construction of a part four, part five storey residential flat building for 8 units including undercroft at-grade parking pursuant to the SEPP (Affordable Rental Housing) 2009.

Key features of the development proposal are as follows:-

The dwelling mix of the proposal is as follows:

-        1 x 1 Bed Unit (12.5%);

-        6 x 2 Bed Unit (75%); and

-        1 x 3 Bed Unit (12.5%).

History

DA2017/226/1 was refused by the Cumberland Local Planning Panel on 27 March 2019 for demolition of existing structures; construction of a 4 storey residential flat building comprising 6 units under affordable rental housing SEPP 2009; at-grade parking accommodating 5 carparking spaces.

The applicant filed court proceedings to the Land and Environment Court against the refusal of DA2017/226/1 on 8 May 2019. Notice of discontinuance of the proceedings case no. 2019/00143856 was requested by the applicant on 28 January 2020.

PL2020/0076 was held at Council on 25 September 2020 for demolition of existing structures and the construction of a six (6) storey Residential Flat Building (including roof top communal open space) pursuant to the SEPP (Affordable Rental Housing).

Applicants Supporting Statement

The applicant has provided a Statement of Environmental Effects prepared by Think Planners dated 27 May 2021 and was received by Council on 11 June 2021 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 with regard to Council’s stormwater drainage pipeline relocation, stormwater management, flooding and car parking 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 regarding to noise impact, contamination and water protection 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 with regard to the adjoining trees protection and therefore can be supported subject to recommended conditions of consent.

Waste Management

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

External Referral

The development application was referred to Endeavour Energy for comment who has advised that the development proposal is satisfactory in terms of electricity connection and therefore can be supported subject to recommended conditions of consent.

Planning Comments

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

(a)     State Environmental Planning Policy (Housing) 2021 (SEPP Housing)

SEPP Housing 2021 came into force on 26 November 2021. The SEPP includes schedule 7 (Savings and transitional provisions) which states that if a Development Application (DA) was lodged with Council however not determined, prior to 26 November 2021, the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 continue to apply to that DA.

The current DA was accepted by Council on 11 June 2021 and as such the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 apply to the application as follows.

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

The application has been submitted under Part 2 New affordable rental housing – Division 1 In-fill affordable housing of the ARH SEPP. It should be noted that the proposal fully complies with the key planning controls contained within the ARH SEPP including site area, deep soil zones, landscaped area, solar access, parking, dwelling size and prescribed standards for in-fill affordable housing. A comprehensive assessment against ARH SEPP is attached in Attachment 6 of this report.

 

10 Land to which Division applies

This Division applies to a development on the subject site, as it is located within R4 High Density Residential zone and located within 800m walking distance to the Merrylands Railway Station.

11 Development to which Division applies

This Division of the ARH SEPP applies as the development for the purposes of residential flat buildings will be provided with at least 20% of the dwellings in the building will be used for affordable housing. Calculations of the GFA allocation are listed below.

o   2 affordable rental housing (ARH) - units 2 and 3 with GFA of 144.02m².

o   Total GFA of 8 units made of the following:

-        Ground floor = 34.84m².

-        First floor = 210.63m².

-        Second floor = 212.63m².

-        Third floor = 214.84m².

-                 Rooftop = 25.9m².

-                 Total = 698.84m².

o   Percentage of ARH units = 144.02m²/698.84m² x 100% = 20.7%.

Residential flat buildings are also permissible on the land zoned R4 under Holroyd LEP 2013 and the land does not contain a heritage item that is identified in an environmental planning instrument or an interim heritage order or on the State Heritage Register. The proposal will provide 20.7% of affordable housing dwellings, therefore Division 1 In-fill affordable housing of the ARH SEPP applies.

13 Residential flat buildings where such buildings permissible

In accordance with clause 13(2)(a)(ii) of ARH SEPP, the maximum FSR that applies to the subject site is 1.2:1 + 0.2:1 = 1.4:1.

The proposal includes a GFA of 698.84m², or FSR of 1.14:1, which complies with the maximum permitted FSR on the site.

An assessment of the development against the provisions of Clause 16A (Character of the local area) is also provided below.

16A Character of local area

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

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

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

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

·        Step 1 – Identify the ‘local area’.

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

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

An assessment against each step is provided below:

Step 1 – Identify the local area.

This assessment identifies the local area as primarily the visual catchment of the site (outlined in black) as viewed from within the site and directly adjacent to the site on the street which is defined by the thick black line in the figure below:

Figure 5 – Local Area catchment

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

The zoning of the broader locality and immediate area comprises R4 High Density Residential, R3 Medium Density Residential and RE1 Public Recreation under the Holroyd Local Environmental Plan (HLEP) 2013.

Present Character of the area

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

1.      Holroyd Gardens along the eastern side of Pitt Street;

2.      Existing 2 – 3 storey walk up flats facing Pitt Street bounded by Walpole Street to the north and Manchester Street to the south;

3.      Surrounding the subject site is a mixture of building types including residential flat buildings from 2 to 4 storeys in height and single storey dwellings; and

4.      A vacant lot on the corner of Pitt Street and Manchester Street (153 Pitt Street) has been approved for a 4 storey residential flat building with basement parking and rooftop common terrace.

Figure 6: Existing Streetscapes

Subject site, 7 Birmingham Street                         9 Birmingham Street          

6-8 Birmingham Street                                                    5 Birmingham Street      

Future Character of the area

The locality is in transition particularly to support the increasing demand of affordable housing within the close proximity of public transport hub and major commercial centre. The transition issue is clear with regard to FSR, height and setbacks for the proposed development. It is considered that the height, bulk and scale of the proposed development is consistent with a single lot development, similar to the newer approved residential flat buildings being constructed and would not be inconsistent with the desired future character of the locality.

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

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

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

The height, FSR and landscaping of the proposed development are designed to maintain the harmony within the streetscape, whilst contributing to the site context and constraint. The height of building breaches the 15m height limit requirement for the lift core as discussed later in the report.  However, the development does not pose any unreasonable overshadowing impacts on adjoining properties.  The proposal being a permissible land use, meets the FSR requirement (in accordance with ARH SEPP, subject to the imposition of conditions) and contributes to the provision of affordable housing within the close proximity of public transport hub and major commercial centre. Appropriate setbacks for the rooftop communal open spaces and privacy treatments are provided to minimise any adverse impacts to the adjoining properties. The proposed development is similar to the newer residential flat buildings being approved on 2-4 Manchester Street and 1 Sheffield Street, 6-10 Manchester Street, 153 Pitt Street, and other existing developments in the vicinity, such as 3 and 5 Birmingham Street. The provision of rooftop communal open space will allow better enjoyment of area with direct solar access at the northerly orientation. Whilst the development will result in some overshadowing to the adjoining properties on the side boundaries, the impacts are not considered unreasonable given this is a function of the allotment orientation and R4 context. The overall design represents the form of development that is envisaged under the planning controls. Refer to further discussion under DCP section of the report.

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

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

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

(b)     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. A design statement addressing the design quality principles prescribed by SEPP 65 was prepared by the project architect, Joe El-Sabbagh, registration number 8707. Integral to SEPP 65 is the Apartment Design Guide (ADG), which sets benchmarks for the appearance, acceptable impacts and residential amenity of the development.

A comprehensive assessment against the SEPP 65 and Apartment Design Guide (ADG) controls is provided at Attachment 7.

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

•        3F Visual Privacy

Objective 3F-1 of the ADG states that minimum separation distances from buildings to side and rear boundaries are as follows.        

Due to the site frontage limitation, full compliance with building separation is not feasible in this instance. At ground floor level, building separation of 0.7m is proposed on the eastern side boundary between elevated undercroft car parking area and units windows of 5 Birmingham Street, where 3m building separation is required between non-habitable and habitable areas. Condition is to be imposed to ensure that privacy screening is to be installed full length along the fencing of the undercroft car parking area on the eastern side to maintain visual privacy of 5 Birmingham Street habitable windows.

Building separation of 2m to 3m is also to be provided to the eastern and western boundaries of the proposed flat building from level 1 to level 3. Variation to the required building separation of 6m is considered acceptable as privacy screens are to be provided to the side facing balconies and highlight windows are also proposed for rooms with openings facing the side elevation. Full openable windows are to be orientated towards the northern (rear) and southern (front) elevations instead.

Further to that, building separation of 3m to side boundaries and of 6m to rear boundary is provided for building height of 5 storeys where the rooftop communal open space is located on level 4. While there are no other 5 storeys buildings directly adjoining the subject site, the rooftop communal open space will be provided with 1.6m high privacy screening along all sides and rear boundaries to maintain privacy with the adjoining properties.

Based on the provision of suitable privacy measures as stated above, non-compliances with the building separation controls are considered acceptable.      

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

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

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

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

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

The development application was referred to Endeavour Energy for comment, who raised no objections, subject to conditions, which have included within the draft notice of determination.

(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

N/A - the site contains no trees or significant landscape features.

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

BASIX certificate no. 1207322M dated 31 May 2021 was submitted with the application. The certificate achieves target scores and is consistent with the architectural plans.

 

Regional Environmental Plans

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

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

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

(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

(i)      Cumberland Local Environmental Plan 2021 (CLEP)

The Cumberland Local Environmental Plan 2021 (CLEP) has been gazetted on the NSW Legislation website and commenced on 5 November 2021. The CLEP 2021 is prepared to provide a single planning framework for the future planning of Cumberland City. The CLEP 2021 harmonises and repeals the three LEPs previously applicable to the Cumberland local government area, those being:

·        Holroyd Local Environmental Plan 2013,

·        Parramatta Local Environmental Plan 2011, and

·        Auburn Local Environmental Plan 2010.

However, as the subject application was lodged prior to the gazettal of the Cumberland LEP 2021, in accordance with Clause 1.8A - Savings provision relating to development applications, the application is assessed under the provisions of the Holroyd LEP 2013. As the Cumberland LEP was an exhibited draft at the lodgement of the subject application, the provisions of the Cumberland LEP are also considered in the assessment of the application and are considered to be satisfactory.

(j)      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 as follows:

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

Note—

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

The relevant matters to be considered under Holroyd LEP 2013 and the applicable clauses for the proposed development are summarised below. A comprehensive LEP assessment is contained in Attachment 4.

Figure 7 –Holroyd LEP 2013 Compliance Table

Clause 4.6 Exceptions to Development Standards

Height of Buildings

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

The proposed building has a maximum building height of 16.76m to the roof of the lift core and fire stairs, and 15.54m to top of rooftop lobby, storage and pergola. This equates to a maximum of 11.73% variation to the permitted height of buildings under the Holroyd LEP 2013.

Figures 8 & 9 - Elevation and 3D height plane showing the extent of height variation

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

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

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

Applicant’s justification:

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

Planner’s Comment:

The proposed development is considered to be consistent with the objectives of the R4 High Density Residential zone in that a variety of housing types within a high density residential environment is provided, which is contributory to the existing local character of the streetscapes.

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 a small portion of the building, roof form and lift over-run, the proposal remains consistent with the objectives based on the following:

·        In relation to objective a) the visual impact of the development will present a 4 storey development consistent with the desired future character set by the 15m height limit. Further the area of non-compliance is recessed from the street frontage such that it is not easily ‘read’ in the streetscape which minimises the visual impact of the element that exceeds the height limit;

·        In relation to objective (a) and the issue of solar access detailed shadow analysis demonstrates that the adjoining properties maintain suitable solar access with the shadow cast equitably given the orientation of the site;

·        In relation to objective (a) and the issue of visual privacy the proposal has been designed to ensure that privacy impacts are mitigated noting that the area of non-compliance is the lobby space leading to the COS and storage areas and the perimeter of the of the COS area is treated with a raised planter and privacy screens to mitigate privacy impacts- noting the COS area and planters and privacy screens are below the height limit.

·        In relation to objective (b) the non-compliance with the height standard is a result of the developments seeking compliance with flooding controls- and the provision of suitable rooftop COS area and the proposal adequately responds to the landform in the context of a flood affected site.

·        In relation to objective (c) the scale is appropriate noting the 4 storey form is consistent with the HDCP 2013 provisions and there are only 3 levels of the building with residential units and the proposal is also compliant with the 1.2:1 FSR meaning a suitable balance and intensity of development.

·        The minor non-compliance to the height control has no impact on the setting of any items of environmental heritage or view corridors; and

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

Planner’s comment:

The objectives of the building height standard are to enable appropriate development density to be achieved and to ensure that the height of the building is compatible with the character of the locality as outlined above. The proposal is compliant with the maximum FSR inclusive of the bonus provision under the ARH SEPP. The increased height does not result in an additional level for residential use, as it comprises portion of the roof structures, including storage area that could not be accommodated on the car parking level due to flood affectation on the site 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 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:

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

The proposal provides for a rooftop COS in a location that will receive solar access and also be above the flood level in a location delivery higher amenity than the ground floor which is a poor location for the COS. The lift over-run and departure could be removed however this would reduce the amenity for the development as it would remove equitable and accessible access to the rooftop COS.

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 16.76m (RL 38.950) 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 the site being subject to flooding which requires an elevated ground floor plate. 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 site and does so without unduly compromising relationships with adjoining development, and does not unduly compromise other relevant controls, the proposal is considered to be consistent with the objectives of building height, and development within the 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 contravention to the maximum building height development standard is considered acceptable in this instance.

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

(a)     Draft State Environmental Planning Policy (Environment)

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

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

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

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

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

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

·                 Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005

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

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

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

(b)     Draft State Environmental Planning Policy (Design and Place)

The draft SEPP Design and Place as exhibited aims to simplify and consolidate how to address the need for sustainable and resilient places and deliver good design in NSW. The draft SEPP has been not notified to any consent authorities and is therefore not a mandatory matter for consideration under the Act.

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

Cumberland Development Control Plan (DCP) 2021

The Cumberland DCP 2021 is in force as of 5 November 2021. However, as the subject application was lodged prior to the Cumberland DCP coming into force, in accordance with Clause 1.1.4 - Savings provision of Part A - Introduction, the application is assessed under the provisions of the Holroyd DCP 2013 As the Cumberland DCP 2021 was adopted by Council at the lodgement of the subject application, the provisions of the Cumberland DCP are also considered in the assessment of the application and are considered to be satisfactory.

Holroyd Development Control Plan (DCP) 2013

The Holroyd DCP 2013 provides guidance for the design and operation of development to achieve the aims and objectives of the DCP. A comprehensive assessment and compliance table is contained in Attachment 9. 

The proposed development generally complies with the provisions of Holroyd DCP 2013 with the exception of the following matters which are outlined in the table below.

·        At grade car parking

Part B, section 1 General Residential Controls, clause 1.11 Car Parking & Roads, control C33 states that basement parking is mandatory for all residential flat buildings developments within the R4 zone. Due to the severe flood affectation on the site that includes land within each of the high flood, medium flood and low flood risk precincts, the proposed undercroft car parking area is considered acceptable and is also supported by Council’s Development Engineer, subject to conditions to be imposed. The proposal will continue to satisfy the objective of the Holroyd DCP 2013 to ensure that car parking do not visually dominate the streetscape by the reinforcement of building articulation proposed along the street frontage.

·        Adaptable housing and car parking

Part A, section 3 Car Parking, clause 3.6 Parking for the Disabled control C9 and Part B, section 1 General Residential Controls, clause 6.9 Parking and Vehicular Access control C13 state that car parking spaces allocated to dwellings that are built to the Adaptable Housing Standard – AS 4299 must comply with the dimensions specified in that standard. Further to that, clause 1.11 Adaptable Housing and Accessibility, control C3 states that 15% of dwelling units shall comply with AS4299- 1995- Adaptable Housing Class B, in which the number of adaptable units will be calculated by rounding up to the nearest whole unit. The proposed residential flat buildings comprising of 8 units will require 1.2 that is rounded up to 2 units of adaptable housing with 2 associated car parking spaces. The proposed development will provide for 1 unit of adaptable housing with 1 associated car parking space. Non-compliance with the DCP requirements is supported in this instance as the site’s constraint and flood affectation will not allow for an additional/second disabled space to be provided within the undercroft car parking area. Council’s Development Engineer has reviewed the dimensions of the proposed disabled car space no.1 and found that the dimensions do not comply with Australian Standards AS2890.6:2009. Changes to the layout of the ground floor level car parking area are required to accommodate a compliant disabled car space, in which shall include an extension of a portion of car space no.1 above the existing sewer line. A separate approval from Sydney Water will be required. Deferred commencement condition is to be imposed accordingly to reflect this requirement. The extension of the hardstand area into the northern side will not affect the area required as part of the deep soil zone having dimension less than 3m in width.

·        Lot frontage and landlocking

Where a lot frontage of 24m is required, the site has a lot frontage of only 15.24m. The proposal will result in site isolation of 9 Birmingham Street, as 11-13 Birmingham Street is an existing residential flat building development.

The site isolation principles established by the Land and Environment Court have been considered in the assessment of the development application. Development proposals that create land locking or site isolation shall provide documentation that demonstrates a reasonable attempt has been made by the applicants to purchase the land locked site(s), including written valuation that represent the affected sites potential value. Consistent with the Planning Principle of Karavellas v Sutherland Shire Council [2004] NSWLEC 251 (Karavellas v Sutherland Shire Council), the application is supported by an offer to the owner of the isolated property at 9 Birmingham Street, with the offer being based on two recent independent valuations. Two valuation reports prepared by two independent registered valuers indicating the market values of the subject site were issued, and the highest and best value was considered based on the likely additional yield the site would be able to generate. On this basis, the offer was made to purchase the property higher than the valuations tendered. The owner of 9 Birmingham Street did not respond to any of offer made. The offer is deemed a reasonable offer by the Planning Principle of Karavellas v Sutherland Shire Council.

In the judgement of Cornerstone Property Group Pty Ltd Vs Warringah Council [2004] NSWLEC 189, planning principle to site isolation was further considered as follows:-

Can orderly and economic use and development of the separate site be achieved if amalgamation is not feasible.

Future redevelopment sites

The sites at 7 and 9 Birmingham Street are the last remaining dated single dwelling houses on the northern part of Birmingham Street. Both of the sites have similar land sizes and capable to be built as an individual lot. Mirrored or reversed design of 7 Birmingham Street can be easily adopted on 9 Birmingham Street, as amalgamation of both sites is not feasible in this instance. There is also an existing pattern on Birmingham Street where individual lots have been built as residential flat buildings with examples of developments at 3 and 5 Birmingham Street. Orderly and economic use and development of 9 Birmingham Street as a separate site is considered achievable without further amalgamation.

·        Site coverage

Where a maximum permitted site coverage is 30%, the proposal will result in site coverage of 52.1%. Non-compliance with the site coverage requirement however is considered acceptable as the proposed development will maintain an adequate provision to be made on site for deep soil planting, landscaping, driveways, communal open space and On-Site Detention.

·        Rear setbacks

Where 20% of the length of the site or 8.04m (4 storeys) and 30% of the length of the site or 12.06m (5 storeys) are required as rear setbacks, only 6m could be provided for level 1-4 and ground floor setback is proposed at approximately 1.3m from the at grade car parking. This variation is considered as acceptable, as the proposed development will still continue to satisfy the ADG requirements for building separation and visual privacy, maintain residential amenity and will not result in further overshadowing to the adjoining properties.

·        Number of storeys

The proposed development will result in 5 storey development, where a maximum of 4 storey is permitted. Variation to this control however is considered acceptable as the 5th storey is proposed to accommodate a communal open space and is a result of the developments seeking compliance with the flooding requirements. The proposal adequately responds to the landform in the context of a flood affected site and will still be perceived as a 4 storey development from the street, given the 5th storey element is appropriately setback.

Based on merit assessment above, the variation proposed to the Holroyd DCP 2013 requirements will continue to perform a satisfactory planning outcome in this instance.

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 Regulation (EP&A Act s4.15 (1)(a)(iv))

The proposed development raises no concerns as to the relevant matters arising from the Environmental Planning and Assessment Regulation 2000 (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))

In accordance with Council’s Notification requirements contained within the Holroyd DCP 2013, the proposal was publicly notified for a period of 21 days between 16 July 2021 and 6 August 2021. The notification generated one (1) submission in respect of the proposal with nil disclosing a political donation or gift. The issues raised in the public submissions are summarised and commented on as follows:

Figure 10 – Submission summary table

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.

CUMBERLAND LOCAL INFRASTRUCTURE CONTRIBUTIONS PLAN 2020

The development would require the payment of contributions in accordance with Cumberland Local Infrastructure Contributions Plan 2020.

In accordance with the Contribution Plan a contribution is payable, pursuant to Section 7.11of the EP&A Act, calculated on the cost of works. A total contribution for 1 x 1 bedroom, 6 x 2 bedroom and 1 x 3 bedroom units of $107,093.00 (including credit for 1 x 3 bedroom dwelling) would be payable prior to the 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 Application has been assessed in accordance with the relevant requirements of the Environmental Planning and Assessment Act 1979, Environmental Planning and Assessment Regulation 2000, State Environmental Planning Policy No. 55 – Remediation of Land, State Environmental Planning Policy (Affordable Rental Housing) 2009, State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, State Environmental Planning Policy (Infrastructure) 2007, State Environmental Planning Policy No. 65 (SEPP 65) – Design Quality of Residential Apartment Development, Holroyd Local Environmental Plan 2013, Cumberland Local Environmental Plan 2021, Cumberland Development Control Plan 2021, and Holroyd Development Control Plan 2013 and is considered to be satisfactory. However, variation in relation to the building height is sought.

Having regard to the assessment of the proposal from a merit perspective, Council may be satisfied that the development has been responsibly designed and provides for acceptable levels of amenity for future residents. It is considered that the proposal successfully minimises adverse impacts on the amenity of neighbouring properties. Hence the development, irrespective of the 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 proposed development is considered to be satisfactory subject to deferred commencement conditions.

 

Report Recommendation: 1.      That the Clause 4.6 variation request to vary the height of building development standard, pursuant to the Cumberland LEP 2021, be supported. 2.      That Development Application No. DA2021/0298 for demolition of existing structures and the construction of a part four, part five storey residential flat building for 8 units including undercroft at-grade parking pursuant to the SEPP (Affordable Rental Housing) 2009 on land at 7 Birmingham Street MERRYLANDS  NSW  2160 be granted a deferred commencement approval subject to conditions listed in the attached schedule. 3.      Persons whom have lodged a submission in respect to the application be notified of the determination of the application.

 

1.      Draft Notice of Determination  

2.      Clause 4.6 Variation Request  

3.      Architectural Plans  

4.      Stormwater Plans  

5.      Submission Received  

6.      ARH SEPP Assessment  

7.      SEPP 65 & ADG Assessment  

8.      Holroyd LEP Assessment  

9.      Holroyd DCP Assessment  

10.    Draft Reasons for Approval   

 

Attachment 1

Draft Notice of Determination

 9 February 2022

Attachment 2

Clause 4.6 Variation Request

 9 February 2022

Attachment 3

Architectural Plans

 9 February 2022

Attachment 4

Stormwater Plans

 9 February 2022

Attachment 5

Submission Received

 9 February 2022

Attachment 6

ARH SEPP Assessment

 9 February 2022

Attachment 7

SEPP 65 & ADG Assessment

 9 February 2022

Attachment 8

Holroyd LEP Assessment

 9 February 2022

Attachment 9

Holroyd DCP Assessment

 9 February 2022

Attachment 10

Draft Reasons for Approval

 9 February 2022