9 March 2022

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

Business as below:

Yours faithfully

Peter J. Fitzgerald

General Manager

ORDER OF BUSINESS

1.      Receipt of Apologies

2.      Declarations of Interest

3.      Reports:

          -        Development Applications

          -        Planning Proposals

4.      Closed Session Reports

 

 9 March 2022

CONTENTS

Report No.  Name of Report                                                                                         Page No.

Development Applications – Electronic Determination

LPP004/22... Development Application for 31-33 Killeen Street, Auburn........................... 5

LPP005/22... Development Application for 15 Mary Street & 13 Harrow
Road Auburn....................................................................................................... 71

LPP006/22... Development Application for 10 Patricia Street Mays Hill......................... 255

LPP007/22... Development Application for Land adjacent to 3 South Parade,
Auburn............................................................................................................... 403

LPP008/22... Development Application for Land adjacent 35-39 Auburn
Road Auburn..................................................................................................... 463

LPP009/22... Development Application for - Land adjacent to 665-669
Merrylands Road Greystanes........................................................................ 525

LPP010/22... Development Application for 41 Auburn Road Auburn.............................. 601

LPP011/22... Development Application for 22-26 Joseph Street Lidcombe.................. 663

LPP012/22... Development Application for 27 Sherwood Road Merrylands.................. 721

LPP013/22... Development Application for 60 Railway Street Lidcombe....................... 803

LPP014/22... Development Application for Rawson St entrance of Auburn
Railway Station Auburn................................................................................... 865

LPP015/22... Development Application for 67 Rawson Street, Auburn.......................... 945

 

 9 March 2022

Item No: LPP004/22

Development Application for 31-33 Killeen Street, Auburn

Responsible Division:                    Environment & Planning

Officer:                                              Executive Manager Development and Building

File Number:                                    DA2021/0607  

 

 

1.      Development Application 2021/0607 was accepted on Monday 22 November 2021 for the demolition of the existing building and construction of a two-storey depot building for the New South Wales State Emergency Services containing administration spaces, parking, associated amenities and erection of two building identification signs.

2.      The application was publicly notified to occupants and owners of the adjoining properties for a period of fourteen (14) days between Friday 26 November and Friday 10 December 2021. In response, Council received one submission.

3.      There are no variations identified to the planning controls that apply to the site.

4.      The development application is referred to the Panel as the proposal is a Council development on Council owned land.

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

 

The site forms part of the larger Council depot area which is used for the storage and maintenance of Council owned equipment and hardware. The Council stores equipment such as garbage trucks and maintenance vehicles on site and undertakes maintenance to such vehicles.

 

Soil and road based surfaces such as cement and asphalt is also stored on site.

 

The subject site is known as 31 and 33 Killeen Street has a frontage of 26.82 metres to Killeen Street, is 40.215 metres in length and occupies an area of 1,078.1 square metres.

 

There is a NSW State Emergency Service (SES) maintenance shed, an SES operations building and an older building being a lunch room situated at the southern side of the depot site facing Killeen Street and generally confined to five lots being:-

 

•        Lots 19 and 20 in DP 6713 comprising the subject site.

•        Lots 15, 16 and 17 in DP 6713 comprising the remaining SES buildings but excluded from the development site.

 

Access to the whole area is via two driveways from Killeen Street.

 

The Auburn Botanic Gardens, Auburn Tennis Club and Council depot site are the dominant land uses within the locality. The nearest residential property is situated on the southern side of Killeen Street where there are three dwelling houses. The dwellings are situated between 35 and 72 metres from the site.

 

The nearby Auburn Botanic Gardens is listed as a heritage item within the Cumberland Local Environmental Plan 2021 and is listed as Item I5 for Landscape heritage. The development site does not interfere with the heritage listed gardens and the subject site is not listed as a heritage item within the Cumberland Local Environmental Plan 2021.

 

There are parklands within the wider area including three soccer grounds within an area facing Chiswick Road and Wellington Road.

 

The location of the site is shown below.

Figure1

 

The zoning of the site is shown below.

 

Figure 2

 

Photos of the site are provided below.

 

 

 

Development application 2021/0607 is proposing the demolition of the existing building used by the SES personnel and construction of a new SES facility on site. Effectively, the works will replace the old weatherboard building with a new two storey purpose built facility encompassing the following:-

 

Ground floor

 

•        Two storerooms with the larger room occupying an area of 44.5 square metres and a smaller room occupying an area of 38 square metres.

•        Male and female toilets and showers.

•        One laundry.

•        One large internal parking area for the storage of trucks and other SES equipment. The parking area is accessible via four roller shutter doors to be situated on the eastern side of the building.

 

The ground floor occupies an area of 474.735 square metres.

 

First floor

 

•        An open office area for ten (10) staff which will include computer consoles and desks.

•        Two separate offices for SES management.

•        One meeting room.

•        A breakout room with kitchen.

 

The first floor occupies an area of 167.98 square metres.

 

Vehicle access to and from the site will be retained using the existing driveway network that connects to Killeen Street.

 

The building will occupy an area of 642.7 square metres. The building would mainly be used by SES and Council personnel during natural disasters such as floods and storms with little use during the quieter periods.

 

Building Identification signs

 

The development application includes the erection of two building identification signs as follows facing east:-

 

•        1 sign situated above the roller shutter doors that reads “NSW State Emergency Service” which has dimensions of 10.76 metres x 746 mm and having an area of 8.02 square metres.

 

•        1 sign situated above the entrance door of the building that reads “SES Gooloogong Unit” and phone number. The sign has dimensions of 1.584 metres x 1.101 metres and having an area of 1.743 square metres.

 

 

 

The development application was accepted by Council on Monday 22 November 2021 and was notified between Friday 26 November and Friday 10 December 2021. There was one submission received.

 

 

The applicant has provided a Statement of Environmental Effects prepared by Graham Bakewell Architect which was received by Council on Wednesday 27 October 2021 in support of the application.

 

 

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.

 

 

Development Engineer

 

The development application was referred to Council’s Development Engineer for comment who has advised that the development proposal is satisfactory. Conditions are provided addressing stormwater drainage and engineering related matters.

 

Building Surveyor

 

The development application was referred to Council’s Building Surveyor for comment who has advised that the development proposal is satisfactory subject to conditions.

 

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. A waste analysis classification report was prepared by Trinitas Group which included soil testing. The testing is satisfactory and the development is supported subject to conditions.

 

Parks / Open Space

 

The development application was referred to Council’s Public Spaces, Planning and Design Department for comment where staff have advised that the development application is satisfactory and no comment required. 

 

Waste Management

 

The development application was referred to Council’s Waste Management Officer for comment who has advised that the development proposal is satisfactory and no conditions are required.

 

 

The development application was referred to Ausgrid for comment who have advised that no decision is required. There are no objections to the development and no conditions are required.

 

 

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:

 

 

Local Environmental Plans

 

Cumberland Local Environmental Plan 2021

 

The provisions of the Cumberland Local Environmental Plan 2021 are applicable to the development application. It is noted that the development achieves compliance with the key statutory requirements of the Cumberland Local Environmental Plan 2021 and the relevant objectives of the REI Public Recreation zone.

 

(a)     Permissibility:

 

The proposed development is defined as a depot and forms part of a larger depot site for the SES and Council. A depot is defined as:-

 

“A building or place used for the storage (but not sale or hire) of plant, machinery or other goods (that support the operations of an existing undertaking) when not required for use, but does not include a farm building”.

 

Given that the SES is already using the site as a “depot” and the proposed development is replacing an existing building with a new purpose building for the storage of plant, machinery, vehicles and equipment that is used to support the operations, it is considered that permissibility is achieved in the REI Public Recreation zone.

 

A building identification sign is defined as:-

 

“A sign that identifies or names a building and that may include the name of a building, the street name and number of a building, and a logo or other symbol but does not include general advertising of products, goods or services”.

 

“Note Building identification signs are a type of signage see the definition of that term in this dictionary”.

 

The two signs are attached to the building forming part of the building. It is considered that the two building identification signs are permissible with consent as ancillary structures attached to the building.

 

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 at Appendix B.

 

 

DEVELOPMENT STANDARD	COMPLIANCE	DISCUSSION
4.3 Height of Buildings. Not applicable.	N/A.	The building is two storeys in height and rises no higher than 8.55 metres above the natural ground level.
4.4 Floor Space Ratio. Not applicable.	N/A.	The building has a floor area of 642.7 square metres which would provide a floor space ratio of 0.596:
4.6 Exceptions to Development Standards.	N/A.	Not applicable.

 

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 instrument.

 

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

 

The Cumberland Development Control Plan 2021 is in force as of 5 November 2021. The Cumberland Development Control Plan provides guidance for the design and operation of development to achieve the aims and objectives of the Cumberland Local Environmental Plan 2021.

 

It is identified that there are few provisions that can be applied to the development given location and zoning of the site. Generally, a merit assessment is required to be made for the development.

 

It is identified that the “Advertising and Signage” chapter is relevant under the Miscellaneous Development Controls of Part G for the building identification signs to be erected. It is determined that the two signs are acceptable when considered under the relevant provisions. A detailed assessment is at Attachment C.

 

Given location on Council owned land and the merit assessment undertaken, the replacement State Emergency Service building is acceptable for the locality.

 

Car parking

 

There are no car parking provisions for depots however, if the first floor of the building was to be classified wholly as office, then the area of 167 square metres would require 4 spaces based on the development control plan rate of 1 space per 40 square metres. The entire site is provided with adequate car parking with designated car parks situated in Killeen Street directly at the front of the site, another Council car park on the depot site along its northern curtilage facing Chiswick Road, car parking areas adjacent to the main depot buildings plus another 40 car parking spaces available along the eastern side of the depot. Council engineers have raised no issues with the existing car parking arrangements available. 

 

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 terms of its size, scale, height and bulk in the context of the site and surrounding area.

 

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

 

Advertised (Council Website)

Mail

Sign

Not Required

 

In accordance with Council’s Notification requirements contained within the Cumberland Development Control Plan, the development application was notified for a period of fourteen (14) days between Friday 26 November and Friday 10 December 2021.

 

There was one submission received.

 

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.

 

 

A contribution is not required to be paid for such a development on Council’s land in accordance with the Cumberland Local Infrastructure Contributions Plan 2020.

 

 

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 relevant state environmental planning policies:-

 

a)      State Environmental Planning Policy (Biodiversity and Conservation) 2021.

b)      State Environmental Planning Policy (Resilience and Hazards) 2021.

c)      State Environmental Planning Policy (Industry and Employment) 2021.

d)      Cumberland Local Environmental Plan 2021.

e)      Cumberland Development Control Plan.

 

The development is considered to be satisfactory for approval subject to conditions.

 

 

Report Recommendation:   1.    That Development Application 2021/0607 for Demolition of existing building and construction of a two-storey depot building for NSW State Emergency Services containing administration spaces, parking, associated amenities and erection of two building identification signs on land at 31 – 33 Killeen Street Auburn be approved subject to conditions.   2.    Persons whom have lodged a submission in respect to the application be notified of the determination of the application.

1.      Appendix A - State Environmental Planning Policy 64  

2.      Appendix B - Cumberland Local Environmental Plan  

3.      Appendix C - Cumberland Development Control Plan  

4.      Draft Notice of Determination  

5.      Draft Reasons for Approval  

6.      Submission No. 1 Redacted  

7.      Assessment Report   

 

Attachment 1

Appendix A - State Environmental Planning Policy 64

 9 March 2022

Attachment 2

Appendix B - Cumberland Local Environmental Plan

 9 March 2022

Attachment 3

Appendix C - Cumberland Development Control Plan

 9 March 2022

Attachment 4

Draft Notice of Determination

 9 March 2022

Attachment 5

Draft Reasons for Approval

 9 March 2022

Attachment 6

Submission No. 1 Redacted

 9 March 2022

Attachment 7

Assessment Report

 9 March 2022

 9 March 2022

Item No: LPP005/22

Development Application for 15 Mary Street & 13 Harrow Road Auburn

Responsible Division:                    Environment & Planning

Officer:                                              Executive Manager Development and Building

File Number:                                    DA2021/0597  

 

 

1.       Development Application 2021/0597 was received on 21 October 2021 for the construction of a 7 storey commercial building with ground floor parking at 13 Harrow Road, Auburn. The proposal also involves alterations and additions to the approved mixed use development at 15 Mary Street, Auburn including the reduction of the approved communal open space area, provision of vehicular access and reconfiguration of the basement level 2 to facilitate parking and lift access requirements for the new building.

 

2.       In total, the proposed development will provide for 2,465.18m² of commercial floorspace. The proposal does not alter the yield of the approved development over 15 Mary Street, which will maintain the approved 158 residential units and 13 commercial suites.

 

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

 

4.       The proposed development does not involve any variation to a development standard.

 

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

 

6.       The application is referred to the Panel as State Environmental Planning Policy No.65 - Design Quality of Residential Apartment Development applies to the development. 

 

7.       The application has been assessed by an independent planning consultant, Mr. Glenn Apps.

The subject site is known as Lot 919, DP1266699 and Lot 27, DP1093256, 15 Mary Street and 13 Harrow Road, Auburn.  The subject site is located on the northwest corner of Mary Street and Harrow Road.  The location of the site is shown at Figure 1.  An aerial image of the site and surrounding area is at Figure 2.

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

The site has a frontage to Mary Street of 74.63m to the south and a frontage to Harrow Road of 48.7m to the east.  The combined site has a total area of 3,340.86m². The 13 Harrow Road site over which the commercial building is proposed has a frontage to Harrow Road of 12.19m and an area of 613m².

The land is occupied by a single storey residential building as shown in Figure 3. The building has been approved for demolition under a previous development application. The land comprising 15 Mary Street features a mixed-use development which is currently under construction.

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

 

Figure 1 – Locality Plan of subject site (source: SixMaps)

 

Figure 2 – Aerial view of subject site (source: SixMaps)

 

Figure 3 – Street view of subject site showing adjoining mixed use building adjoining

 

Council has received a development application which proposes:

 

-     the construction of a 7 storey commercial building;

-     ground floor parking; and

-     alterations and additions to the approved mixed use development at 15 Mary Street, Auburn including the reduction of communal open space area, provision of vehicular access and reconfiguration of the basement level 2 to facilitate parking and lift access requirements for the new building.

 

The demolition of the existing building on 13 Harrow Road was approved under previous development application DA2021/0328 (see History below).

In detail, the development will provide the following:

·        Ground floor:

-        1 x commercial tenancy of 188.68m²;

-        9 carparking spaces accessed via 15 Mary Street;

-        loading bay;

-        commercial waste room;

-        amenities and access;

 

·        First floor and Second floor (each):

-        2 x commercial tenancy of 233.76m2 and 269.70m2;

-        amenities and access;

 

·        Third floor:

-        2 x commercial tenancy of 233.76m2 and 209.50m2;

-        amenities and access;

 

·        Fourth floor:

-        1 x commercial tenancy of 225.69m2;

-        amenities and access;

 

·        Fifth floor:

-        1 x commercial tenancy of 147.20m2;

-        amenities and access;

-        podium area;

 

·        Sixth floor:

-        1 x commercial tenancy of 147.20m2;

-        amenities and access.

 

The proposed development presents a 5-storey street wall to Harrow Road which is consistent with the approved development at 15 Mary Street. The proposed development seeks to use the same materials and colour palette as that used in the development at 15 Mary Street which will result in a uniform facade presentation. The podium on top of the 5^th storey features a landscape edge which is in keeping with the treatment of the open space podium on the approved development at 15 Mary Street and will further assist in ensuring the two buildings read as one consistent design.

 

Side elevations are treated to provide visual interest to the building when viewed from the building at 15 Mary Street. The treatment of the northern elevation also provides visual interest to the building when viewed from the land to the north and from Harrow Road, at least until such time as the land to the north is similarly developed.

 

Figure 4 – Extracts of northern and eastern elevations

Parking for 9 vehicles (8 of which are in a stacked formation) is proposed and is accessed via the ground level parking of 15 Mary Street.

 

Figure 5 – Vehicular access between 15 Mary Street and 13 Harrow Road

 

The development, when considered as a whole, exceeds the minimum number of car parking spaces required under the Auburn DCP 2010. Sufficient parking is therefore provided for the proposed development and all components of the existing, approved development.

 

Pedestrian access is also afforded from the Basement 2 parking level of 15 Mary Street to the proposed building via a lift as shown below.

 

Figure 6 – Pedestrian access between 15 Mary Street and 13 Harrow Road

 

A condition of consent will require the consolidation of 13 Harrow Road with 15 Mary Street.

 

 

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

 

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

 

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

 

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

 

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

 

Modification application MOD2019/5286 was lodged on the 20 December 2019 to modify DA-92/2019 to add a 5 bedroom penthouse apartment on top of the western tower in place of the rooftop common open space.

 

MOD2019/5286 was approved on the 13 February 2020.

 

MOD2020/0496 was lodged on the 21 January 2021 to amend the layout of the ground floor commercial component and the fire stair arrangements.

 

MOD2020/0496 was approved on the 12 March 2021.

 

DA2021/0328 was lodged on 22 June 2021 for the demolition of existing structures at 13 Harrow Road and the provision of communal open space over that land. DA2021/0328 also proposed alterations and additions to the mixed-use development at 15 Mary Street approved under DA-92/2019 including ground floor access to the open space at 13 Harrow Road, provision of communal open space on level 5 podium, removal of rooftop communal open space and construction of a 3 bedroom unit, and changes to corridor windows on levels 6 to 11.

 

DA2021/0328 was approved on the 8 September 2021.

 

 

The development application is supported by the following reports.

 

 

The consulting planner carrying out the assessment undertook a site inspection on 22 November 2021. Council’s officer with carriage of the DA has been in regular contact with the applicant throughout the assessment process.

 

 

 

 

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

 

State Environmental Planning Policies

 

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

 

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

 

While SEPP 65 does not apply to the proposed commercial building, the carrying out of that building may have implications for the residential component of the mixed-use development to which SEPP 65 applies.

 

An assessment of relevant matters under the ADG has been carried out to confirm that the proposed commercial development does not result in any non-compliance with the provisions of the ADG for the residential component of the approved development at 15 Mary Street.

 

A comprehensive assessment against SEPP 65 and the ADG is contained in Appendix A of Attachment 4.

 

Common open space

 

Common open space reduced over that provided under DA2021/0328 because of the development of the 13 Harrow Road land which was previously provided as common open space.

 

Notwithstanding, the common open space exceeds the minimum 25% required under the ADG and is provided as follows:

 

 

The proposed commercial building also reduces solar access to the common open space on the Level 1 podium and the Level 5 podium on the eastern tower of 15 Mary Street.

 

Notwithstanding the reduction in solar access, the ADG benchmark of 50% of the common open space areas achieving 2 hours solar access between 9am and 3pm on the winter solstice is met, with more than 50% of the provided common open space receiving solar access between 10am and 2pm.

 

Solar access

 

The proposed commercial building results in a reduction of the number of apartments receiving compliant solar access from 120 apartments to 118 apartments.  Notwithstanding this reduction, the development maintains 75% of apartments achieving the required 2 hours direct sunlight between 9 am and 3 pm at mid-winter, which exceeds the benchmark of 70% established by the ADG.

 

The carrying out of the commercial building will not increase the number of apartments that receive no direct sunlight between 9 am and 3 pm at mid-winter.

 

Cross ventilation

 

The proposed development does not result in a decrease in the number of apartments that achieve cross ventilation.

 

The proposed development does not unreasonably reduce the amenity of the residential component of the development,

 

State Environmental Planning Policy (Resilience and Hazards) 2021

 

Chapter 4 - Remediation of Land.

 

A Preliminary Site Analysis has been provided and has been considered by Council’s Environmental Health Unit and found to be satisfactory in its methodology and conclusions.

 

The recommendations of the report are to be adopted via conditions of consent.

 

Local Environmental Plans

 

 

Auburn LEP 2010

 

The provision of the Auburn LEP 2010 is applicable to the development proposal as the development application was lodged prior to the commencement of the Cumberland LEP 2021 on 5 November 2021.

 

Clause 1.8A of the Cumberland LEP 2021 contains the following savings provision:

 

1.8A   Savings provision relating to development applications

 

If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced.

 

The proposed development achieves compliance with the key statutory requirements of the Auburn LEP 2010 and the objectives of the B4 Mixed Use zone.

 

(a)     Permissibility:-

 

The development provides commercial floorspace for “business premises”, “office premises” or “retail premises”.  Each use is permissible in the B4 Mixed Use zone with consent.

 

The relevant matters to be considered under Auburn LEP 2010 and the applicable clauses for the proposed development are summarised below.  A comprehensive LEP assessment is contained in Appendix B of Attachment 4.

 

Figure 7 – Auburn 2010 Compliance Table

 

(b)     Zone objectives:-

 

The proposed development is consistent with the objectives of the B4 Mixed Use zone, as follows.

 

 

 

(c)     Heritage:-

 

The subject land is in proximity to various items of environmental heritage, particularly the Auburn Ambulance Station at 54 Queen Street, Auburn (Item I1) and a Georgian dwelling at 8 Mary Street, Auburn (Item I10).

 

Having regard to the separation of the subject land from those heritage items, the proposed development does not impact on either item or affect the interpretation of either item.

 

 

 

 

 

 

 

 

 

 

Figure 8 – Extract of Heritage Map

 

The provisions of any proposed instrument (EP&A Act s4.15 (1)(a)(ii))

 

(a)     Draft State Environmental Planning Policy (Environment)

 

The modified development does not raise issues relating to the draft SEPP(Environment).

 

(b)     Cumberland Local Environmental Plan

 

The Cumberland Local Environmental Plan commenced on 5 November 2021 and was a draft at the time the development application was lodged. The Cumberland Local Environmental Plan remains a matter for consideration under Section 4.15(1)(a)(ii) of the Act as a draft instrument.

 

Under the Cumberland LEP, the subject land retains its B4 Mixed Use zoning and will continue to permit the development.

 

The subject land retains its maximum FSR of 5:1.

 

The Cumberland LEP has increased the maximum building height from 38m to 60m. The proposed development has a maximum height of 24.21m and thus complies with that standard.

 

No other changes to the planning controls will affect the proposed development.

 

The proposal is satisfactory when considered against the development standards and other provisions of the Cumberland LEP.

 

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

 

The Auburn DCP 2010 is applicable to the development proposal as the development application was lodged prior to the commencement of the Cumberland DCP 2021 on 5 November 2021.

 

Clause 1.1.4 of the Cumberland DCP 2021 contains the following savings provision:

 

1.1.4 Savings Provision

 

This DCP does not apply to an application under the EP&A Act which was lodged with Council but not finally determined before the commencement of this DCP. Any application lodged before the commencement of this DCP will be assessed in accordance with any relevant previous DCPs or other Council’s policy which applied at the time of application lodgement.

 

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

 

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

 

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

 

A comprehensive assessment and compliance table is contained in Appendix C of Attachment 4.

 

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

 

There is no planning agreement or draft planning agreement associated with the subject land or 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 proposed development will contribute to the availability of commercial floorspace within the Auburn town centre which will have positive economic effects by providing opportunities for business growth in the centre.

 

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

 

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

 

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

 

 

In accordance with Council’s Notification requirements contained within the Auburn DCP 2010, the Development Application was publicly notified for a period of 14 days between 3 December 2021 and 17 December 2021.

 

No submissions were received as a result of that notification.

 

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.

 

 

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

 

Comments:

 

The proposed development requires a contribution of $39,213.00 to be paid in accordance with the Cumberland Local Infrastructure Contributions Plan 2020. This figure is subject to indexation as per the relevant plan.

 

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

 

Having regard to the assessment of the proposal from a merit perspective, the Panel 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. The development is consistent with the intentions of Council’s planning controls and represents a form of development contemplated by the relevant statutory and non-statutory controls applying to the land.

 

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

 

Report Recommendation: That That Development Application No. DA2021/0597 for the construction of a 7 storey commercial building with ground floor parking at 13 Harrow Road, AUBURN NSW 2144 and alterations and additions to the approved mixed use development at 15 Mary Street Auburn be approved subject to conditions.

1.      Draft Notice of Determination  

2.      Architectural Plans  

3.      Landscape Plans  

4.      Apartment Design Guide Assessment  

5.      Auburn Local Environmental Plan 2010  

6.      Local Centres Chapter Assessment  

7.      Residential Flat Buildings Chapter   

 

Attachment 1

Draft Notice of Determination

 9 March 2022

Attachment 2

Architectural Plans

 9 March 2022

Attachment 3

Landscape Plans

 9 March 2022

Attachment 4

Apartment Design Guide Assessment

 9 March 2022

Attachment 5

Auburn Local Environmental Plan 2010

 9 March 2022

Attachment 6

Local Centres Chapter Assessment

 9 March 2022

Attachment 7

Residential Flat Buildings Chapter

 9 March 2022

 9 March 2022

Item No: LPP006/22

Development Application for 10 Patricia Street Mays Hill

Responsible Division:                    Environment & Planning

Officer:                                              Executive Manager Development and Building

File Number:                                    DA2021/0425  

 

 

1.      Development Application No. DA2021/0425 was accepted on 16 August 2021 for the Demolition of existing structures and construction of part four (4), part five (5) storey residential flat building comprising of 31 residential units over basement car parking and strata subdivision.

2.      The application was publicly notified to occupants and owners of the adjoining properties for a period of twenty one (21) days between 17 September 2021 and 8 October 2021. In response, no submissions were 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, Holroyd Local Environmental Plan (HLEP) 2013 and Holroyd Development Control Plan (HDCP 2013).

5.      The notable variations are as follows:

 

Control	Required	Provided	% variation
Building Height (HLEP 2013)	15m	15.65m (Maximum)	4.3%
Deep soil area (ADG)	Minimum dimension = 6m	5.5m	8.3%
Building separation/ visual privacy (ADG)	6m (habitable) & 3m (non habitable) (4 storeys)	3.83m for Unit 8 balcony (Ground floor - rear)   5.952m – 5.979m for Units 9, 10, 17 & 25 part of balcony edges (Level 1-3 - rear)	36%       0.8%
Apartment Size (ADG)	2 bedroom with additional bathroom 75m²	74.5m² for Units nos. 5, 12 & 20	0.6%
Site coverage (HDCP 2013)	30%	38.3%	27.7%
Rear Setbacks (HDCP 2013)	9.2m (4 storeys)	6m	34.7%
Basement side setback (HDCP 2013)	3m	1.5m along the section of western boundary   2m along the section of southern boundary	50%     33.3%
Number of storey (HDCP 2013)	4	5 (basement protrusion along the south- eastern elevation)	25%

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. 

7.      The application is recommended for Approval subject to the conditions as provided in the attached schedule.

SUBJECT SITE AND SURROUNDING AREA

The subject site is known as 8-12 Patricia Street, Mays Hill and is legally described as Lot 76, Lot 77 & Lot 78 in DP 13239. The subject site is located on the western side of Patricia Street, Mays Hill within the R4 High Density Residential zone. The site forms a regular midblock with a total area of 2148m2 (by calculation) and a combined frontage of 46m to Patricia Street. The site has a fall of approximately 4.5m from the north western corner to the south eastern front corner. The site is currently occupied by detached single dwelling houses, associated outbuildings and vegetation.

The subject site and neighbouring allotments are zoned R4 – High Density Residential. The site is bounded by single storey dwelling house to its immediate northern and southern boundaries with a current DA2021/0636 at 14-16 Patricia Street under assessment by Council for a four storey residential flat building to the adjoining southern boundary. Surrounding the subject site is a mixture of building types including newly constructed residential flat buildings up to 4 storeys in height and single storey dwellings.

There is a transition occurring currently within the immediate locality for older stock housing sites being developed into residential flat buildings.

Figure 1 – Aerial view of subject site

 

 

 

Figure 2 – Zoning map

Figure 3 & 4 – Street view of subject site

Council has received a development application, as amended on 27 January 2022, for demolition of existing structures and construction of a part four (4), part five (5) storey residential flat building comprising of 30 residential units over basement car parking and strata subdivision

Key features of the development proposal are as follows:-

Level	Details
Basement	38 residential car spaces (including 5 accessible parking spaces and 1 car wash bay) 12 bicycle spaces Storage, plant room, lifts and fire stairs
Ground floor level	8 residential units Communal Open Space
Level 1	8 residential units
Level 2	8 residential units
Level 3	6 residential units
Rooftop	Terrace/Communal Open Space, non-trafficable roof, lifts and fire stairs

The dwelling mix of the proposal is as follows:

- 3 x 1 Bed Unit (10%);

- 25 x 2 Bed Unit (83.3%); and

- 2 x 3 Bed Unit (6.67%).

Figure 5 – Perspective of proposed development – Street frontage

 

The applicant has provided a Statement of Environmental Effects prepared by All About Planning dated 31 January 2022 in support of the application.

 

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.

 

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 stormwater management 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 and contamination 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 trees removal 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.

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.

 

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

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

SEPP 65 applies to the development as the building is 3 storeys or more, and contains more than 4 dwellings. A design statement addressing the design quality principles prescribed by SEPP 65 was prepared by the project architect, Ziad Boumelhem, registration number 8008. 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 5.

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.

 

Building (height)	Habitable rooms and balconies	Non-habitable rooms
Up to 12m (4 storeys)	6m	3m

The proposal generally complies with the building separation requirements with the exception of POS of Unit 8 on ground floor and Units 9, 10, 17 and 25 on Level 1 to 3 along the western elevation. Where 6m building separation is required, Unit 8 on ground floor proposes 3.83m setbacks and Units 9, 10, 17 and 25 on Level 1 to 3 propose 5.952m – 5.979m setbacks along the western elevation. Notwithstanding this, a 1.5m high privacy screen proposed along the sides of Unit 8 balcony is considered satisfactory to maintain reasonable privacy with the adjoining properties. Non compliances with the building separation requirement for balcony edges of Units 9, 10, 17 and 25 are considered minor in nature and not likely to result in unacceptable privacy impact on the adjoining properties to the west, also noting that the adjoining development on the western side at 3- 9 Peggy Street was approved as 4 to 5 storey residential flat buildings under DA2017/563/1 with rear setbacks of 11.6m.

Note: Given that the 5th storey component does not constitute as ‘residential /habitable floor” given that it is primarily a result of basement protrusion, building separation for the fifth storey is not required in this instance.

•        3E Deep Soil Area 

Objective 3E -1 of the ADG states that deep soil areas are to meet the following minimum requirements :

 

1.         Site area	2.         Minimum dimensions	3.         Deep soil zone 4.         (% of site area)
5.         Greater than 1,500m2	6.         6m	7.         7%

Deep soil area of 496.1m2, which is 23% of the site area, including the side, rear and front setback areas is proposed. However, the deep soil area along the side and rear setbacks provides a varying dimension of 5.5m to 6.3.

While it is acknowledged that deep soil dimension is deficient at some sections, it is noted that an overall compliant deep soil area as well as communal open space are proposed. The proposed deep soil dimension is considered acceptable. In addition, this area is considered to have been appropriately landscaped (via trees, shrubs and vegetation) and is co – located with communal open space which is considered to improve residential amenity and promote effective management of water and air quality. 

•        4D Apartment Size and Layout

Design criteria of 4D -1 of the ADG states that the minimum apartment internal areas including an additional bathroom equates to 75m². Units nos. 5, 12 and 20 are proposed with internal size of 74.5m², which is a marginal shortfall of 0.5m². The shortfall is considered acceptable, as the apartments have been provided with a functional design and compliant size of living area, bedrooms and POS. Non-compliance with the internal size of the apartment is supported in this instance.

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

BASIX certificate no. 1185197M_02 dated 9 February 2022 was submitted with the application. The certificate achieves target scores and is consistent with the architectural plans.

Local Environmental Plans

(g)     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.

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

The proposed development is defined as a ‘residential flat building’ under the provisions of HLEP 2013. Residential flat buildings are permitted with consent in the R4 – High Density Residential zone which applies to the land 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 6.

Figure 6 –Holroyd LEP 2013 Compliance Table

 

 

 

DEVELOPMENT STANDARD	COMPLIANCE	DISCUSSION
4.3 Height of Buildings Max 15m	N	15.65m - Clause 4.6 request to contravene the height of building development standard was submitted with the application.
4.4 Floor Space Ratio 1.2:1 (2577.6m²)	Y	1.99:1 (GFA of 2576m²)
4.6 Exceptions to Development Standards	Y	Refer to detailed discussions below.
5.10 Heritage Conservation	N/A	The site is not listed as heritage item and it is not located within Heritage Conservation Area.
5.21 Flooding	N/A	The site is not impacted by flooding.
6.7 Stormwater Management	Y	The proposed stormwater management submitted with the application is considered satisfactory, subject to conditions imposed.

Clause 4.6 Exceptions to Development Standards

Height of Buildings

The proposal seeks to contravene the Height of Building Development Standard under Clause 4.3 of the HLEP that stipulates the height of building is not to exceed 15m on the subject site.

The proposed building has a maximum building height of 15.65m to the lift over-run (east), 15.49m to the fire stairs and 15.28m to the lift over-run (west). This equates to a maximum of 4.3% variation to the permitted height of buildings under the Holroyd LEP 2013.

Figures 7 & 8 –North and East Elevations 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 subject proposal complies with the above objectives through the provision of a well-designed, aesthetic high density residential development in a very convenient and connected location. The subject development will also meet a demonstrated community need for apartment style accommodation and increase the overall supply of residential housing. The proposed residential units will be located in close proximity to public transport and both public and private recreation facilities and areas.

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 proposal will not have a significant detrimental impact on the amenity of adjoining and nearby properties nor have a negative impact on the surrounding land uses. The proposal is in keeping with the clearly transitioning future character of the area and the detailed and coherent architectural design will have a positive contribution to the streetscape and is also consistent with the aims and objectives of Council’s planning control.

•        The primary variations in building height being the single fire exit and the two lift over-runs are located central to the proposed building where they will not impact on adjoining properties by way of overshadowing, bulk and scale, and privacy.

•        The minor nature of the 15m Height of Building variations (outlined previously) of 490mm or 3.3%, 650mm or 4.3%, and 0.282m or 1.88% (of the standards) will not result in any perceptible or substantial additional view loss.

•        The proposed non-compliant Height of Building detailed in this submission does not result in additional general visual amenity or any view corridor impacts.

•        Further to the above and more specifically, compliance with the subject LEP standards will not result in any substantial improvement or reduction in the impacts of the proposal on visual amenity or view corridors from nearby properties.

•        The development satisfies all other town planning standards, including FSR, building design, setbacks, parking, traffic management, visual amenity and view sharing and impacts.

•        The minor degree of variations to the Height of Buildings control as outlined earlier, mean that compliance with these LEP controls would not result in a substantial difference to the proposal or it’s built form, but will result in complying fire access and lift arrangements whilst delivering 30 well located and well-designed residential units. Thereby compliance with the standards is unreasonable and unnecessary in the circumstances.

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 development standard. The increased height does not result in an additional level for residential use, as it comprises portion of the lift over run and fire exit.

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:

Application of the Height of Buildings development standard is unreasonable and unnecessary in this instance, and compliance would not result in a better development outcome, not merely because the development has been shown to be consistent with the applicable R4 High Density Residential zone objectives (as discussed above), but for the following additional reasons:

•        The building elements related to the primary variations in building height being the single fire exit and the two lift over-runs are respectively minor only 2.5m x 4.5m, 2.5 x 3m (both lift over-runs) in area, therefore the potential visual impacts created by these elements and their height variations are limited, especially in the context of the proposed whole 4 storey 30 residential flat building development.

•        The primary variations in building height being the single fire exit and the two lift over-runs are located central to the proposed building where they will not impact on adjoining properties by way of overshadowing, bulk and scale, and privacy.

•        Related to the above, the streetscape impact of the above non-complying building heights is meaningfully reduced by the position of the associated building elements being central to the building footprint (and setbacks of same to the street), predominantly shielded by the rest of the building from view at street level.

•        The bulk, scale and form of the building has been well articulated both horizontally and vertically through a cohesive and well considered architectural design adopted.

•        There is public benefit to supporting the subject variation, in as much the proposal will deliver to the community a quality residential flat building in an excellent location, contributing to the variety of dwellings in the area. To get the fire exit roof and lift over-runs to comply with the height control fully would require the loss of one or more of the proposed units which is not necessary or reasonable in the circumstances (with the main building form complying with the height control) and which is not in the public interest.

For all the above substantive reasons, strict compliance with the Height of Buildings control is unreasonable and unnecessary in the circumstances.

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 15.65m (RL 50.890) for the top of the lift core. The additional height of the lift core will not be visible from the adjacent streets and properties. The proposed variation to the development standard is necessary for the structure containing the lift core and in order to achieve required FFLs, and is consistent with the scale of the development within the R4 zone located in the immediate vicinity of the site. The departure sought is considered to be modest and does not unreasonably impact on adjoining properties. The additional height does not result in the appearance of bulk when viewed from the existing streetscape, would not impinge on the changing streetscape that is anticipated for the immediate area and does not result in additional overshadowing to the adjoining properties. It is considered, therefore, that the non-compliance with the Development Standard is not unreasonable or unnecessary in the circumstances of the case.

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

The unique circumstances of the case are considered to warrant support of the departure. Given that the proposed development responds to the 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.

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 changes proposed include consolidating the following existing SEPPs:

•        SEPP 65 – Design Quality of Residential Apartment Development

•        SEPP (Building Sustainability Index: BASIX) 2004

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

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

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 7. 

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.

•        Site coverage

Where a maximum permitted site coverage is 30%, the proposal will result in site coverage of 38.3%. 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 9.2m (4 storeys) is required as rear setback, only 6m has been provided for ground to level 3. 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.

•        Basement side setback

A basement side setback of 3m is required. However, setbacks of 1.5m is proposed along the western boundary and 2m is proposed along the southern boundary. This is considered satisfactory as the proposal complies with the minimum deep soil requirements, side setbacks and landscaping requirements and will not result in any impacts on trees on adjacent sites.

•        Number of storeys

The proposed development presents as a 4 storey built form with 4 residential levels. However, is technically defined as a part 5  storey development as the basement protrudes more than 1.2m above NGL at certain sections and therefore, is constituted as a ’storey’.

The proposed development will result in a part 5 storey development, where a maximum of 4 storey is permitted. Variation to this control is considered acceptable as the protrusion relates only to a to small portion of the building, the departure is primarily from the basement by 200mm, and that the proposal adequately responds to the landform in the context of the site topography and the. The development will still be perceived as a 4 storey development as the protrusion will not result in an additional ‘habitable floor’ and there are no adverse impacts associated with the additional storey.

•        Landlocking of adjoining site

The proposal will result in the land locking of the adjoining northern property No. 6  Patricia Street, Mays Hill which is an existing single storey dwelling.

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 6 Patricia 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 reasonable and objectively valued offer(s) made by the proponents were not accepted by the owners. 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 current development application demonstrates that orderly and economic use and development of the subject site can be carried out, noting the consistency with the relevant planning controls. The adjoining allotment can be developed in an orderly and economic manner that is consistent with key planning controls and also providing appropriate levels of amenity in terms of privacy and solar access and natural ventilation.

Conceptual plans for the adjoining landlocked site have been prepared and submitted showing that the site can be redeveloped to provide a development outcome that will align with the R4 zoning provisions and the HLEP 2013 and that can with a flexible application of the HDCP 2013 achieve the desired outcomes of the key development controls.

Based on the above discussion, it is considered that the orderly and economic use and development of 6 Patricia Street as a separate site is considered achievable without further amalgamation.

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))

 

Advertised (Council Website)

Mail

Sign

Not Required

In accordance with Council’s Notification requirements contained within the Holroyd DCP 2013, the proposal was publicly notified for a period of 21 days between 17 September 2021 and 8 October 2021. In response Council received no submissions. 

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.

 

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 3 x 1 bedroom, 25 x 2 bedroom and 2 x 3 bedroom units of $439,581.00 (including credit for 3 x 3 bedroom dwellings) would be payable prior to the issue of a Construction Certificate

 

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 (Building Sustainability Index: BASIX) 2004, State Environmental Planning Policy No. 65 (SEPP 65) – Design Quality of Residential Apartment Development, State Environmental Planning Policy (Biodiversity and Conservation) 2021, State Environmental Planning Policy (Resilience and Hazards) 2021, State Environmental Planning Policy (Transport and Infrastructure) 2021, 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.

 

 

Report Recommendation: That the Clause 4.6 request to contravene the height of building development standard under Clause 4.3 of the Holroyd LEP 2013, be supported. That Development Application No. DA2021/0425 for demolition of existing structures and construction of a part four, part five storey residential flat building comprising of 30 residential units over basement car parking and strata subdivision on land at 8, 10 & 12 Patricia Street Mays Hill NSW  2145 be granted approval subject to conditions listed in the attached schedule.

 

1.      Development Assessment Report  

2.      Draft Notice of Determination  

3.      Architectural Plans  

4.      HDC Compliance Table  

5.      Stormwater Plans  

6.      HLEP Compliance Table  

7.      Clause 4.6 Variation   

 

Attachment 1

Development Assessment Report

 9 March 2022

Attachment 2

Draft Notice of Determination

 9 March 2022

Attachment 3

Architectural Plans

 9 March 2022

Attachment 4

HDC Compliance Table

 9 March 2022

Attachment 5

Stormwater Plans

 9 March 2022

Attachment 6

HLEP Compliance Table

 9 March 2022

Attachment 7

Clause 4.6 Variation

 9 March 2022

 9 March 2022

Item No: LPP007/22

Development Application for Land adjacent to 3 South Parade, Auburn

Responsible Division:                    Environment & Planning

Officer:                                              Executive Manager Development and Building

File Number:                                    DA2022/0003  

 

 

1.      On, 20 November 2020, Federal Court of Australia has determined that the new generation Smart City payphone structure, which was previously exempt from the requirement for development consent, does not qualify as being “Low impact Facilities” under the Telecommunications Act 1997. As such, a Development Application and associated Building Information Certificate are now required for the use of the existing Telstra payphone structure at the subject site.

 

2.      Development Application No. DA2022/0003 was accepted on 21 January 2022 for the use of the telecommunications facility with a third party advertising on a 32 inches electronic display screen incorporated in the payphone structure on the public footpath adjacent to 3 South Parade, Auburn NSW 2144.

 

3.      The application was publicly notified to occupants and owners of the adjoining properties for a period of 14 days between 2 February 2022 and 16 February 2022. In response, no submissions were received.

 

4.      The subject application has been assessed against the relevant provisions of the relevant State Environmental Planning Policies, Cumberland Local Environmental Plan 2021 and the Cumberland Development Control Plan 2021.

 

5.      The application is referred to the Panel as Council is the owner of the land where this development is proposed.

 

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

 

The subject site is located on the public footpath adjoining No. 3 South Parade, Auburn. A site inspection of the payphone structure carried out on 15 February 2022 confirmed that the structure being a Smart City payphone, the 32 inches screen within the front elevation and 75 inches on the rear elevation currently exists, refer to Figures 3 and 4 below.

 

The site is zoned SP2 Infrastructure containing Auburn train station and is surrounded by B4 Mixed Use zoned land to north, south, and west and R2 Low Density Residential land to the east of the site. The existing developments adjoining the site include commercial use development comprising of retail tenancies.

 

 

 

                                                         

Figure 1 – Aerial view of subject site

Figure 2 – Zoning Map of subject site

 

Figure 3 – Street view of subject structure	Figure 4 – Street view of subject structure

 

 

Council has received a development application for the use of an existing new generation Smart City payphone booth erected within the footpath adjoining No. 3 South Parade, Auburn as a telecommunications facility with a third-party advertising on a 32 inches electronic display screen within the front elevation, which is incorporated in the payphone structure.

 

The payphone structure measures 2.735 metres in height and 1.2 metres in width and includes an electronic display area above the payphone measuring 381mm x 687mm (32 inches) proposed to be used for a third-party advertising.

 

The payphone structure and the 32-inch electronic display screen have been constructed and installed and are currently in operation.

 

It is acknowledged that the electronic display on the rear elevation of the structure, measuring 75 inches, has been approved by Council under DA2019/86. This component has been installed and is currently operating.

 

A Building Information Certificate (BIC) is required for the payphone structure and the associated 32 inches electronic display; conditions of consent have been recommended to address this requirement.

 

·     Development Application DA2019/86 was approved as a Deferred Commencement on 29 May 2019 for the use of a digital display sign affixed to a Telstra payphone rear elevation for a third party advertising. Operative consent was issued on 4 February 2020.

 

·     On 20 November 2020, the Federal Court of Australia (e.g., Telstra Corporation Limited v Melbourne City Council [2021] HCASL 82) has determined that the new generation payphone structure which was previously exempt from the requirement for development consent, does not qualify as “Low impact Facilities” under the Telecommunications Act 1997. As a result, existing structures already built on Council’s land require development consent for its use as a telecommunication facility.

 

·     A Pre Lodgement meeting was held with the applicant on 27 May 2021 under PL2021/0049 and the meeting notes advised the applicant to lodge a Development Application and associated Building Information Certificate to obtain the required approvals for all components of the structure/telecommunication facility.

 

Applicants Supporting Statement

The applicant has provided a Statement of Environmental Effects prepared by Urbis dated November 2021 and was received by Council on 21 January 2022 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

The application was not required to be referred to any of Council’s internal departments for review.

 

External Referrals

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

 

Planning Comments

 

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

 

(a)     Roads Act 1993

As the proposal is not located adjacent to a classified road, approval pursuant to subclause 138(1) of the Roads Act 1993 is not required for this development application.

 

(b)     Telecommunications (Low-Impact Facilities) Determination 2018

Pursuant to the Telecommunications (Low-impact Facilities) Determination 2018, the proposal is not classified as a low impact facility and as such, state and local planning requirements apply.  

 

(c)     Telecommunications Act 1997

The Telecommunications Act establishes a framework for regulating the actions of telecommunications carriers and service providers. The existing payphone structure was previously built pursuant to Schedule 3 of the Telecommunications Act 1997.

 

(d)     Telecommunications Code of Practice 2018

The Telecommunications Code of Practice 2018 commenced on 20 February 2018 and replaces the Telecommunications Code of Practice 1997. The Code of Practice imposes a range of requirements on service providers that engage in, or propose to engage in a land entry activity. The Code also requires the applicant to comply with industry best practice, in the design, planning and installation of facilities. The proposed development relates to the use of an existing payphone structure that was built pursuant to Schedule 3 of the Telecommunications Act 1997.

 

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

 

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

 

Clause 115 – Development permitted with consent

(1)     Development for the purposes of telecommunications facilities, other than development in clause 114 or development that is exempt development under clause 20 or 116, may be carried out by any person with consent on any land.

 

(3)     Before determining a development application for development to which this clause applies, the consent authority must take into consideration any guidelines concerning site selection, design, construction or operating principles for telecommunications facilities that are issued by the Secretary for the purposes of this clause and published in the Gazette.

 

Telecommunication facility is a prohibited land use within the SP2 zone under the Cumberland Local Environmental Plan 2021. The proposed use of the existing telecommunication facility relies on clause 115(1) of the ISEPP 2007 for its permissibility, in which telecommunications facilities may be carried out by any person with consent on any land.

 

Pursuant to clause 115(3) of the ISEPP 2007, before determining the proposal, the consent authority must take into consideration of any guidelines concerning the site selection, design, construction and operation of telecommunication facilities. The proposal was accompanied with the report of compliance to the principles of NSW Telecommunications Facilities Guideline including Broadband 2010. These principles are:

·        Principle 1: A Telecommunications facility is to be designed and sited to minimise

·        visual impact.

·        Principle 2: Telecommunications facilities should be co-located wherever practical.

·        Principle 3: Health standards for exposure to radio emissions will be met; and

·        Principle 4: Minimise disturbance and risk and maximise compliance.

 

These matters have been considered as part of the assessment of this application and are considered satisfactory. Refer to Attachment 4.

 

(f)      State Environmental Planning Policy No 64—Advertising and Signage

 

The proposed signage is ‘advertisement’ as defined under SEPP 64 as follows:

 

Advertisement means signage to which Part 3 applies and includes any advertising structure for the advertisement

 

The subject proposal is subject to assessment under Part 3 of SEPP 64 and the guidelines included in Schedule 1 of the Policy.

 

 

 

Clause	Comments
8 Granting of consent to signage   A consent authority must not grant development consent to an application to display signage unless the consent authority is satisfied:   (a) that the signage is consistent with the objectives of this Policy as set out in clause 3 (1) (a), and (b) that the signage the subject of the application satisfies the assessment criteria specified in Schedule 1.	Satisfactory.  Assessment of the proposal has concluded that the design of the proposed signage is compatible with the character of the area which is predominantly for business use.  The location of the signage is considered suitable and will not have any adverse impact on the amenity of the surrounding developments.
10 Prohibited advertisements   (1) Despite the provisions of any other environmental planning instrument, the display of an advertisement is prohibited on land that is an environmentally sensitive area, heritage area (excluding railway stations), natural or other conservation area, open space, waterway, residential (but not a mixed residential and business zone or similar zone), scenic protection area, national park, nature reserve   (2) This clause does not apply to the following:   (a) The Mount Panorama Precinct. (b) The display of an advertisement at a public sporting facility situated on land zoned public recreation under an EPI being an advertisement that provides information about the sponsors of the teams or organisations using the sporting facility or about the products of those sponsors.	The site is not located on land that is an environmentally sensitive area and is not located nearby to a heritage conservation area.
12 Consent Authority   For the purposes of this Policy, the consent authority is— (a)  the council of a local government area in the case of an advertisement displayed in the local government area (unless paragraph (c), (d) or (e) applies), or (b)  TfNSW in the case of an advertisement displayed on a vessel, or (c)  the Minister for Planning in the case of an advertisement displayed by or on behalf of RailCorp, NSW Trains, Sydney Trains, Sydney Metro or TfNSW on a railway corridor, or (d)  the Minister for Planning in the case of an advertisement displayed by or on behalf of RMS on— (i)  a road that is a freeway or tollway (under the Roads Act 1993) or associated road use land that is adjacent to such a road, or (ii)  a bridge constructed by or on behalf of TfNSW on any road corridor, or (iii)  land that is owned, occupied or managed by TfNSW, or (e)  the Minister for Planning in the case of an advertisement displayed on transport corridor land comprising a road known as the Sydney Harbour Tunnel, the Eastern Distributor, the M2 Motorway, the M4 Motorway, the M5 Motorway, the M7 Motorway, the Cross City Tunnel or the Lane Cove Tunnel, or associated road use land that is adjacent to such a road.	Council is considered the consent authority for the subject proposal.
13 Matters for consideration   (1)   A consent authority (other than in a case to which subclause (2) applies) must not grant consent to an application to display an advertisement to which this Policy applies unless the advertisement or the advertising structure, as the case requires: (a)  is consistent with the objectives of this Policy as set out in clause 3 (1) (a), and (b)  has been assessed by the consent authority in accordance with the assessment criteria in Schedule 1 and the consent authority is satisfied that the proposal is acceptable in terms of its impacts, and (c)  satisfies any other relevant requirements of this Policy.	The proposed signage is considered to be in a suitable location and will have acceptable impacts on the local area.   The development application is limited to the use of the existing sign on the payphone for third party advertising. The third party advertising will be displayed on a screen that is part of a public payphone operated by Telstra. The subject site is located on the pedestrian footpath and will not have any detrimental impacts on the traffic flows within the locality.
14 Duration of Consents   (1) A consent granted under this part ceases to be in force: (a) on the expiration of 15 years after the date on which the consent becomes effective and operates (b) if a lesser period is specified by the consent authority, that lesser period   (2) The consent authority may specify a period less than 15 years only if: (a) before the commencement of this Part, the consent authority had adopted a policy of granting consents in relation to applications to display advertisements for a lesser period and the duration of the consent authority is consistent with that policy (b) the area in which the advertisement is undergoing change in accordance with an EPI that aims to change the nature and character of development and where the proposed advertisement would be inconsistent with that change (c) the specification of a lesser period if required by another provision of this Policy.	Council will impose a condition restricting the consent to a period of fifteen (15) years.
16 Transport Corridor Land   (1)  Despite clause 10 (1) and the provisions of any other environmental planning instrument, the display of an advertisement on transport corridor land is permissible with development consent in the following cases— (a)  the display of an advertisement by or on behalf of RailCorp, NSW Trains, Sydney Trains, Sydney Metro or TfNSW on a railway corridor, (b)  the display of an advertisement by or on behalf of TfNSW on— (i)  a road that is a freeway or tollway (under the Roads Act 1993) or associated road use land that is adjacent to such a road, or (ii)  a bridge constructed by or on behalf of TfNSW on any road corridor, or (iii)  land that is owned, occupied or managed by TfNSW and that is within 250 metres of a classified road, (c)  the display of an advertisement on transport corridor land comprising a road known as the Sydney Harbour Tunnel, the Eastern Distributor, the M2 Motorway, the M4 Motorway, the M5 Motorway, the M7 Motorway, the Cross City Tunnel or the Lane Cove Tunnel, or associated road use land that is adjacent to such a road.   (2)  Before determining an application for consent to the display of an advertisement in such a case, the Minister for Planning may appoint a design review panel to provide advice to the Minister concerning the design quality of the proposed advertisement.   (3)  The Minister must not grant consent to the display of an advertisement in such a case unless— (a)  the relevant local council has been notified of the development application in writing and any comments received by the Minister from the local council within 28 days have been considered by the Minister, and (b)  the advice of any design review panel appointed by the Minister has been considered by the Minister, and (c)  the Minister is satisfied that the advertisement is consistent with the Guidelines.   (4)  This clause does not apply to the display of an advertisement if the Minister determines that display of the advertisement is not compatible with surrounding land use, taking into consideration any relevant provisions of the Guidelines.	The site is not situated within land designated as a transport corridor and as such, Clause 16 is not applicable.
17   Advertisements with display area greater than 20 square metres or higher than 8 metres above ground   (1)  This clause applies to an advertisement: (a)  that has a display area greater than 20 square metres, or (b)  that is higher than 8 metres above the ground.   (2)  The display of an advertisement to which this clause applies is advertised development for the purposes of the Act.   (3)  The consent authority must not grant consent to an application to display an advertisement to which this clause applies unless: (a)  the applicant has provided the consent authority with an impact statement that addresses the assessment criteria in Schedule 1 and the consent authority is satisfied that the proposal is acceptable in terms of its impacts, and (b)  the application has been advertised in accordance with section 79A of the Act, and (c)  the consent authority gave a copy of the application to RMS at the same time as the application was advertised in accordance with section 79A of the Act if the application is an application for the display of an advertisement to which clause 18 applies.	Clause 17 does not apply to the proposed development for the following reasons:   ·   The proposed signage has an area of 0.26m2 which does not exceed an area of 20m2; and D1  ·   Has a maximum height of 1.886 metres above ground.
18   Advertisements greater than 20 square metres and within 250 metres of, and visible from, a classified road   (1)  This clause applies to the display of an advertisement to which clause 17 applies, that is within 250 metres of a classified road any part of which is visible from the classified road.   (2)  The consent authority must not grant development consent to the display of an advertisement to which this clause applies without the concurrence of RMS.   (3)  In deciding whether or not concurrence should be granted, RMS must take into consideration: (a)  the impact of the display of the advertisement on traffic safety, and (b)  the Guidelines. (c)    (Repealed)   (4)  If RMS has not informed the consent authority within 21 days after the copy of the application is given to it under clause 17 (3) (c) (ii) that it has granted, or has declined to grant, its concurrence, RMS is taken to have granted its concurrence.   (5)  Nothing in this clause affects clause 16.   (6)  This clause does not apply when the Minister for Planning is the consent authority.	The proposed sign has an area of 0.26m2 and is not located on a classified road. As such, RMS referral is not required and Clause 18 is not applicable.
19   Advertising display area greater than 45 square metres   The consent authority must not grant consent to the display of an advertisement with an advertising display area greater than 45 square metres unless— (a)  a development control plan is in force that has been prepared on the basis of an advertising design analysis for the relevant area or precinct, or (b)  in the case of the display of an advertisement on transport corridor land, the consent authority is satisfied that the advertisement is consistent with the Guidelines.	The proposed advertisement is less than 45m2, as such Clause 19 does not apply.
20   Location of certain names and logos   (1)  The name or logo of the person who owns or leases an advertisement or advertising structure may appear only within the advertising display area.   (2)  If the advertising display area has no border or surrounds, any such name or logo is to be located— (a)  within the advertisement, or (b)  within a strip below the advertisement that extends for the full width of the advertisement.   (3)  The area of any such name or logo must not be greater than 0.25 square metres.   (4)  The area of any such strip is to be included in calculating the size of the advertising display area	All logos associated with the proposed third party advertising is integrated within the payphone structure. There are no logos within the frames or devices to be erected.

 

ENVIRONMENTAL PLANNING INSTRUMENTS (EPIs)

 

The proposed development is affected by the following consolidated State Environmental Planning Policies that came into effect on 1 March 2022. No savings provision is indicated within the new SEPPs, as no policy changes have been made. The SEPP consolidation does not change the legal effect of the existing SEPPs, with section 30A of the Interpretation Act 1987 applying to the transferred provisions. In this regard, the following matters have been incorporated in the planning assessment of the proposed development under s4.15 of the Environmental Planning and Assessment Act 1979.

 

 

Local Environmental Plans

 

Cumberland Local Environmental Plan 2021 (CLEP 2021)

The provision of the CLEP 2021 is applicable to the development proposal. It is noted that the development achieves compliance with the key statutory requirements of the CLEP 2021 and the objectives of the SP2 Infrastructure Zone.

 

(a)     Permissibility:

 

The proposed development is defined as a ‘telecommunications facility’ and ‘signage’. Signage is permissible in the SP2 Infrastructure Zone with consent; however, ‘telecommunications facility’ is a prohibited land use within the SP2 zone. Under Clause 115 of the ISEPP 2007, telecommunications facilities may be carried out by any person with consent on any land. As such, the proposal is permissible (Refer to ISEPP 2007 discussion within the report).

 

Telecommunications facility means—

(a)  any part of the infrastructure of a telecommunications network, or

(b)  any line, cable, optical fibre, fibre access node, interconnect point equipment, apparatus, tower, mast, antenna, dish, tunnel, duct, hole, pit, pole, or other structure in connection with a telecommunications network, or

(c)  any other thing used in or in connection with a telecommunications network.

 

signage means any sign, notice, device, representation, or advertisement that advertises or promotes any goods, services or events and any structure or vessel that is principally designed for, or that is used for, the display of signage, and includes any of the following—

(a)  an advertising structure,

(b)  a building identification sign,

(c)  a business identification sign,

but does not include a traffic sign or traffic control facilities.

 

A comprehensive LEP assessment is contained in Attachment 7.

 

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

 

N/A

 

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

The Cumberland DCP 2021 provides guidance for the design and operation of development to achieve the aims and objectives of the Cumberland LEP 2021.

 

A comprehensive assessment and compliance table is contained in Attachment 8.

 

The proposed development complies with the provisions of the Cumberland DCP 2021 and 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))

 

Advertised (Council Website)

Mail

Sign

Not Required

 

In accordance with Council’s Notification requirements contained within the Cumberland DCP 2021, the proposal was publicly notified for a period of 14 days between 2 February 2022 and 16 February 2022. No submissions were received in respect of the proposed development.

 

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

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

 

Cumberland Local Infrastructure Contributions Plan 2020

The development would not require the payment of contributions in accordance with Cumberland Local Infrastructure Contributions Plan 2020.

 

Disclosure of Political Donations and Gifts

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

 

 

 

 

 

 

 

 

Conclusion

 

The development application has been assessed in accordance with the relevant requirements of the Environmental Planning and Assessment Act 1979, Environmental Planning and Assessment Regulation 2000, Roads Act 1993, Telecommunications Act 1997, State Environmental Planning Policy (Biodiversity and Conservation) 2021, State Environmental Planning Policy (Resilience and Hazards) 2021, State Environmental Planning Policy (Transport and Infrastructure) 2021, State Environmental Planning Policy (Industry and Employment) 2021,Cumberland LEP 2021 and Cumberland DCP 2021 and is considered to be satisfactory for approval, subject to conditions.

 

Report Recommendation: That Development Application No. DA2022/0003 for the use of the land as a telecommunications facility with third party advertising on a 32-inch electronic display screen incorporated in the payphone structure on the public footpath adjacent to 3 South Parade, Auburn NSW 2144 be Approved subject to attached conditions.

 

1.      Draft Notice of Determination  

2.      Site Plan  

3.      Elevation Plan  

4.      NSW Telecommunications Facilities Guideline Including Broadband 2010  

5.      State Environmental Planning Policy No 64 - Advertising and Signage  

6.      Cumberland Local Environmental Plan 2021  

7.      Cumberland Development Control Plan 2021  

8.      Draft Reasons for Recommendation   

 

Attachment 1

Draft Notice of Determination

 9 March 2022

Attachment 2

Site Plan

 9 March 2022

Attachment 3

Elevation Plan

 9 March 2022

Attachment 4

NSW Telecommunications Facilities Guideline Including Broadband 2010

 9 March 2022

Attachment 5

State Environmental Planning Policy No 64 - Advertising and Signage

 9 March 2022

Attachment 6

Cumberland Local Environmental Plan 2021

 9 March 2022

Attachment 7

Cumberland Development Control Plan 2021

 9 March 2022

Attachment 8

Draft Reasons for Recommendation

 9 March 2022

 9 March 2022

Item No: LPP008/22

Development Application for Land adjacent 35-39 Auburn Road Auburn

Responsible Division:                    Environment & Planning

Officer:                                              Executive Manager Development and Building

File Number:                                    DA2022/0005  

 

 

1.       On, 20 November 2020, Federal Court of Australia has determined that the new generation Smart City payphone structure, which was previously exempt from the requirement for development consent, does not qualify as being “Low impact Facilities” under the Telecommunications Act 1997. As such, a Development Application and associated Building Information Certificate are now required for the use of the existing Telstra payphone structure at the subject site.

 

2.       Development Application No. DA2022/0005 was accepted on 21 January 2022 for the use of the telecommunications facility with a third party advertising on a 32 inches electronic display screen incorporated in the payphone structure on the public footpath adjacent to 35-39 Auburn Road, AUBURN NSW 2144.

 

3.       The application was publicly notified to occupants and owners of the adjoining properties for a period of 14 days between 2 February 2022 and 16 February 2022. In response, no submissions were received.

 

4.       The subject application has been assessed against the relevant provisions of the relevant State Environmental Planning Policies, Cumberland Local Environmental Plan 2021 and the Cumberland Development Control Plan 2021.

 

5.       The application is referred to the Panel as Council is the owner of the land where this development is proposed.

 

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

 

The subject site is located on the public footpath adjoining No. 35-39 Auburn Road, Auburn. A site inspection of the payphone structure carried out on 15 February 2022 confirmed that the structure being a Smart City payphone, the 32 inches screen within the front elevation and 75 inches on the rear elevation currently exists, refer to Figures 3 and 4 below.

The site is zoned B4 Mixed Use and is surrounded by B4 Mixed Use zoned land. The existing developments adjoining the site include commercial use development comprising of retail tenancies.

i)                

Figure 1 – Aerial view of subject site

 

Figure 2 – Zoning Map of subject site

 

Figure 3 – Street view of subject structure	Figure 4 – Street view of subject structure

 

Council has received a development application for the use of an existing new generation Smart City payphone booth erected within the footpath adjoining No. 35-39 Auburn Road, Auburn as a telecommunications facility with a third party advertising on a 32 inches electronic display screen within the front elevation, which is incorporated in the payphone structure.

 

The payphone structure measures 2.735 metres in height and 1.2 metres in width and includes an electronic display area above the payphone measuring 381mm x 687mm (32 inches) proposed to be used for a third party advertising.

 

The payphone structure and the 32 inch electronic display screen have been constructed and installed and are currently in operation.

 

It is acknowledged that the electronic display on the rear elevation of the structure, measuring 75 inches, has been approved by Council under DA2019/64. This component has been installed and is currently operating.

 

A Building Information Certificate (BIC) is required for the payphone structure and the associated 32 inches electronic display; conditions of consent have been recommended to address this requirement.

 

 

·     Development Application DA2019/64 was approved as a Deferred Commencement on 29 May 2019 for the use of a digital display sign affixed to a Telstra payphone rear elevation for a third party advertising. Operative consent was issued on 10 February 2020.

 

·     On 20 November 2020, the Federal Court of Australia (e.g., Telstra Corporation Limited v Melbourne City Council [2021] HCASL 82) has determined that the new generation payphone structure which was previously exempt from the requirement for development consent, does not qualify as “Low impact Facilities” under the Telecommunications Act 1997. As a result, existing structures already built on Council’s land require development consent for its use as a telecommunication facility.

 

·     A Pre Lodgement meeting was held with the applicant on 27 May 2021 under PL2021/0049 and the meeting notes advised the applicant to lodge a Development Application and associated Building Information Certificate to obtain the required approvals for all components of the structure/telecommunication facility.

 

 

 

The applicant has provided a Statement of Environmental Effects prepared by Urbis dated November 2021 and was received by Council on 21 January 2022 in support of the application.

 

 

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.

 

 

The application was not required to be referred to any of Council’s internal departments for review.

 

 

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

 

 

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

 

(a)     Roads Act 1993

 

As the proposal is not located adjacent to a classified road, approval pursuant to subclause 138(1) of the Roads Act 1993 is not required for this development application.

 

(b)     Telecommunications (Low-Impact Facilities) Determination 2018

 

Pursuant to the Telecommunications (Low-impact Facilities) Determination 2018, the proposal is not classified as a low impact facility and as such, state and local planning requirements apply.  

 

(c)     Telecommunications Act 1997

 

The Telecommunications Act establishes a framework for regulating the actions of telecommunications carriers and service providers. The existing payphone structure was previously built pursuant to Schedule 3 of the Telecommunications Act 1997.

 

(d)     Telecommunications Code of Practice 2018

 

The Telecommunications Code of Practice 2018 commenced on 20 February 2018 and replaces the Telecommunications Code of Practice 1997. The Code of Practice imposes a range of requirements on service providers that engage in, or propose to engage in a land entry activity. The Code also requires the applicant to comply with industry best practice, in the design, planning and installation of facilities. The proposed development relates to the use of an existing payphone structure that was built pursuant to Schedule 3 of the Telecommunications Act 1997.

 

State Environmental Planning Policy (Infrastructure) 2007 (ISEPP)

 

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

 

Clause 115 – Development permitted with consent

(1) Development for the purposes of telecommunications facilities, other than development in clause 114 or development that is exempt development under clause 20 or 116, may be carried out by any person with consent on any land.

 

(3) Before determining a development application for development to which this clause applies, the consent authority must take into consideration any guidelines concerning site selection, design, construction or operating principles for telecommunications facilities that are issued by the Secretary for the purposes of this clause and published in the Gazette.

 

Pursuant to clause 115(3) of the ISEPP 2007, before determining the proposal, the consent authority must take into consideration of any guidelines concerning the site selection, design, construction and operation of telecommunication facilities. The proposal was accompanied with the report of compliance to the principles of NSW Telecommunications Facilities Guideline including Broadband 2010. These principles are:

• Principle 1: A Telecommunications facility is to be designed and sited to minimise visual impact;

•   Principle 2: Telecommunications facilities should be co-located wherever practical;

•   Principle 3: Health standards for exposure to radio emissions will be met; and

•   Principle 4: Minimise disturbance and risk and maximise compliance.

 

These matters have been considered as part of the assessment of this application and are considered satisfactory. Refer to Attachment 4.

 

(e)     State Environmental Planning Policy No 64—Advertising and Signage

 

The proposed signage is ‘advertisement’ as defined under SEPP 64 as follows:

 

Advertisement means signage to which Part 3 applies and includes any advertising structure for the advertisement

 

The subject proposal is subject to assessment under Part 3 of SEPP 64 and the guidelines included in Schedule 1 of the Policy.

 

 

Clause	Comments
8 Granting of consent to signage   A consent authority must not grant development consent to an application to display signage unless the consent authority is satisfied:   (a) that the signage is consistent with the objectives of this Policy as set out in clause 3 (1) (a), and (b) that the signage the subject of the application satisfies the assessment criteria specified in Schedule 1.	Satisfactory.  Assessment of the proposal has concluded that the design of the proposed signage is compatible with the character of the area which is predominantly for business use.  The location of the signage is considered suitable and will not have any adverse impact on the amenity of the surrounding developments.
10 Prohibited advertisements   (1) Despite the provisions of any other environmental planning instrument, the display of an advertisement is prohibited on land that is an environmentally sensitive area, heritage area (excluding railway stations), natural or other conservation area, open space, waterway, residential (but not a mixed residential and business zone or similar zone), scenic protection area, national park, nature reserve   (2) This clause does not apply to the following:   (a) The Mount Panorama Precinct. (b) The display of an advertisement at a public sporting facility situated on land zoned public recreation under an EPI being an advertisement that provides information about the sponsors of the teams or organisations using the sporting facility or about the products of those sponsors.	The site is not located on land that is an environmentally sensitive area and is not located nearby to a heritage conservation area.
12 Consent Authority   For the purposes of this Policy, the consent authority is— (a)  the council of a local government area in the case of an advertisement displayed in the local government area (unless paragraph (c), (d) or (e) applies), or (b)  TfNSW in the case of an advertisement displayed on a vessel, or (c)  the Minister for Planning in the case of an advertisement displayed by or on behalf of RailCorp, NSW Trains, Sydney Trains, Sydney Metro or TfNSW on a railway corridor, or (d)  the Minister for Planning in the case of an advertisement displayed by or on behalf of RMS on— (i)  a road that is a freeway or tollway (under the Roads Act 1993) or associated road use land that is adjacent to such a road, or (ii)  a bridge constructed by or on behalf of TfNSW on any road corridor, or (iii)  land that is owned, occupied or managed by TfNSW, or (e)  the Minister for Planning in the case of an advertisement displayed on transport corridor land comprising a road known as the Sydney Harbour Tunnel, the Eastern Distributor, the M2 Motorway, the M4 Motorway, the M5 Motorway, the M7 Motorway, the Cross City Tunnel or the Lane Cove Tunnel, or associated road use land that is adjacent to such a road.	Council is considered the consent authority for the subject proposal.
13 Matters for consideration   (1)   A consent authority (other than in a case to which subclause (2) applies) must not grant consent to an application to display an advertisement to which this Policy applies unless the advertisement or the advertising structure, as the case requires: (a)  is consistent with the objectives of this Policy as set out in clause 3 (1) (a), and (b)  has been assessed by the consent authority in accordance with the assessment criteria in Schedule 1 and the consent authority is satisfied that the proposal is acceptable in terms of its impacts, and (c)  satisfies any other relevant requirements of this Policy.	The proposed signage is considered to be in a suitable location and will have acceptable impacts on the local area.   The development application is limited to the use of the existing sign on the payphone for third party advertising. The third party advertising will be displayed on a screen that is part of a public payphone operated by Telstra. The subject site is located on the pedestrian footpath and will not have any detrimental impacts on the traffic flows within the locality.
14 Duration of Consents   (1) A consent granted under this part ceases to be in force: (a) on the expiration of 15 years after the date on which the consent becomes effective and operates (b) if a lesser period is specified by the consent authority, that lesser period   (2) The consent authority may specify a period less than 15 years only if: (a) before the commencement of this Part, the consent authority had adopted a policy of granting consents in relation to applications to display advertisements for a lesser period and the duration of the consent authority is consistent with that policy (b) the area in which the advertisement is undergoing change in accordance with an EPI that aims to change the nature and character of development and where the proposed advertisement would be inconsistent with that change (c) the specification of a lesser period if required by another provision of this Policy.	Council will impose a condition restricting the consent to a period of fifteen (15) years.
16 Transport Corridor Land   (1)  Despite clause 10 (1) and the provisions of any other environmental planning instrument, the display of an advertisement on transport corridor land is permissible with development consent in the following cases— (a)  the display of an advertisement by or on behalf of RailCorp, NSW Trains, Sydney Trains, Sydney Metro or TfNSW on a railway corridor, (b)  the display of an advertisement by or on behalf of TfNSW on— (i)  a road that is a freeway or tollway (under the Roads Act 1993) or associated road use land that is adjacent to such a road, or (ii)  a bridge constructed by or on behalf of TfNSW on any road corridor, or (iii)  land that is owned, occupied or managed by TfNSW and that is within 250 metres of a classified road, (c)  the display of an advertisement on transport corridor land comprising a road known as the Sydney Harbour Tunnel, the Eastern Distributor, the M2 Motorway, the M4 Motorway, the M5 Motorway, the M7 Motorway, the Cross City Tunnel or the Lane Cove Tunnel, or associated road use land that is adjacent to such a road.   (2)  Before determining an application for consent to the display of an advertisement in such a case, the Minister for Planning may appoint a design review panel to provide advice to the Minister concerning the design quality of the proposed advertisement.   (3)  The Minister must not grant consent to the display of an advertisement in such a case unless— (a)  the relevant local council has been notified of the development application in writing and any comments received by the Minister from the local council within 28 days have been considered by the Minister, and (b)  the advice of any design review panel appointed by the Minister has been considered by the Minister, and (c)  the Minister is satisfied that the advertisement is consistent with the Guidelines.   (4)  This clause does not apply to the display of an advertisement if the Minister determines that display of the advertisement is not compatible with surrounding land use, taking into consideration any relevant provisions of the Guidelines.	The site is not situated within land designated as a transport corridor and as such, Clause 16 is not applicable.
17   Advertisements with display area greater than 20 square metres or higher than 8 metres above ground   (1)  This clause applies to an advertisement: (a)  that has a display area greater than 20 square metres, or (b)  that is higher than 8 metres above the ground.   (2)  The display of an advertisement to which this clause applies is advertised development for the purposes of the Act.   (3)  The consent authority must not grant consent to an application to display an advertisement to which this clause applies unless: (a)  the applicant has provided the consent authority with an impact statement that addresses the assessment criteria in Schedule 1 and the consent authority is satisfied that the proposal is acceptable in terms of its impacts, and (b)  the application has been advertised in accordance with section 79A of the Act, and (c)  the consent authority gave a copy of the application to RMS at the same time as the application was advertised in accordance with section 79A of the Act if the application is an application for the display of an advertisement to which clause 18 applies.	Clause 17 does not apply to the proposed development for the following reasons:   ·   The proposed signage has an area of 0.26m2 which does not exceed an area of 20m2; and D1   ·   Has a maximum height of 1.886 metres above ground.
18   Advertisements greater than 20 square metres and within 250 metres of, and visible from, a classified road   (1)  This clause applies to the display of an advertisement to which clause 17 applies, that is within 250 metres of a classified road any part of which is visible from the classified road.   (2)  The consent authority must not grant development consent to the display of an advertisement to which this clause applies without the concurrence of RMS.   (3)  In deciding whether or not concurrence should be granted, RMS must take into consideration: (a)  the impact of the display of the advertisement on traffic safety, and (b)  the Guidelines. (c)    (Repealed)   (4)  If RMS has not informed the consent authority within 21 days after the copy of the application is given to it under clause 17 (3) (c) (ii) that it has granted, or has declined to grant, its concurrence, RMS is taken to have granted its concurrence.   (5)  Nothing in this clause affects clause 16.   (6)  This clause does not apply when the Minister for Planning is the consent authority.	The proposed sign has an area of 0.26m2 and is not located on a classified road. As such, RMS referral is not required and Clause 18 is not applicable.
19   Advertising display area greater than 45 square metres   The consent authority must not grant consent to the display of an advertisement with an advertising display area greater than 45 square metres unless— (a)  a development control plan is in force that has been prepared on the basis of an advertising design analysis for the relevant area or precinct, or (b)  in the case of the display of an advertisement on transport corridor land, the consent authority is satisfied that the advertisement is consistent with the Guidelines.	The proposed advertisement is less than 45m2, as such Clause 19 does not apply.
20   Location of certain names and logos   (1)  The name or logo of the person who owns or leases an advertisement or advertising structure may appear only within the advertising display area.   (2)  If the advertising display area has no border or surrounds, any such name or logo is to be located— (a)  within the advertisement, or (b)  within a strip below the advertisement that extends for the full width of the advertisement.   (3)  The area of any such name or logo must not be greater than 0.25 square metres.   (4)  The area of any such strip is to be included in calculating the size of the advertising display area	All logos associated with the proposed third party advertising is integrated within the payphone structure. There are no logos within the frames or devices to be erected.

 

 

 

 

 

 

 

The proposed development is affected by the following consolidated State Environmental Planning Policies that came into effect on 1 March 2022. No savings provision is indicated within the new SEPPs, as no policy changes have been made. The SEPP consolidation does not change the legal effect of the existing SEPPs, with section 30A of the Interpretation Act 1987 applying to the transferred provisions. In this regard, the following matters have been incorporated in the planning assessment of the proposed development under s4.15 of the Environmental Planning and Assessment Act 1979.

 

 

Local Environmental Plans

 

Cumberland Local Environmental Plan 2021 (CLEP 2021)

 

The provision of the CLEP 2021 is applicable to the development proposal. It is noted that the development achieves compliance with the key statutory requirements of the CLEP 2021 and the objectives of the B4 Mixed Use Zone.

 

(a)     Permissibility:

 

The proposed development is defined as a ‘telecommunications facility’ and ‘signage’ and are permissible in the B4 Mixed Use Zone with consent.

 

Telecommunications facility means—

(a)  any part of the infrastructure of a telecommunications network, or

(b)  any line, cable, optical fibre, fibre access node, interconnect point equipment, apparatus, tower, mast, antenna, dish, tunnel, duct, hole, pit, pole or other structure in connection with a telecommunications network, or

(c)  any other thing used in or in connection with a telecommunications network.

 

signage means any sign, notice, device, representation or advertisement that advertises or promotes any goods, services or events and any structure or vessel that is principally designed for, or that is used for, the display of signage, and includes any of the following—

(a)  an advertising structure,

(b)  a building identification sign,

(c)  a business identification sign,

but does not include a traffic sign or traffic control facilities.

 

A comprehensive LEP assessment is contained in Attachment 7.

 

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

 

N/A

 

 

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

 

The Cumberland DCP 2021 provides guidance for the design and operation of development to achieve the aims and objectives of the Cumberland LEP 2021.

 

A comprehensive assessment and compliance table is contained in Attachment 8.

 

The proposed development complies with the provisions of the Cumberland DCP 2021 and 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))

 

Advertised (Council Website)

Mail

Sign

Not Required

 

In accordance with Council’s Notification requirements contained within the Cumberland DCP 2021, the proposal was publicly notified for a period of 14 days between 2 February 2022 and 16 February 2022. No submissions were received in respect of the proposed development.

 

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

 

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

 

 

The development would not require the payment of contributions in accordance with Cumberland Local Infrastructure Contributions Plan 2020.

 

 

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, Environmental Planning and Assessment Regulation 2000, Roads Act 1993, Telecommunications Act 1997, State Environmental Planning Policy (Biodiversity and Conservation) 2021, State Environmental Planning Policy (Resilience and Hazards) 2021, State Environmental Planning Policy (Transport and Infrastructure) 2021, State Environmental Planning Policy (Industry and Employment) 2021,Cumberland LEP 2021 and Cumberland DCP 2021 and is considered to be satisfactory for approval, subject to conditions.

 

 

Report Recommendation: That Development Application No. DA2022/0005 for the use of the land as a telecommunications facility with third party advertising on a 32 inch electronic display screen incorporated in the payphone structure on the public footpath adjacent to 35-39 Auburn Road, Auburn NSW 2144 be Approved subject to attached conditions.

 

1.      Draft Notice of Determination  

2.      Site Plan  

3.      Elevation Plan  

4.      NSW Telecommunications Facilities Guideline including Broadband 2010 Compliance Table  

5.      State Environmental  Planning Policy -64 Advertising and Signage  

6.      Cumberland Local Environmental Plan 2021  

7.      Cumberland Development Control Plan  

8.      Draft reasons for recommendation   

 

Attachment 1

Draft Notice of Determination

 9 March 2022

Attachment 2

Site Plan

 9 March 2022

Attachment 3

Elevation Plan

 9 March 2022

Attachment 4

NSW Telecommunications Facilities Guideline including Broadband 2010 Compliance Table

 9 March 2022

Attachment 5

State Environmental  Planning Policy -64 Advertising and Signage

 9 March 2022

Attachment 6

Cumberland Local Environmental Plan 2021

 9 March 2022

Attachment 7

Cumberland Development Control Plan

 9 March 2022

Attachment 8

Draft reasons for recommendation

 9 March 2022

 9 March 2022

Item No: LPP009/22

Development Application for - Land adjacent to 665-669 Merrylands Road Greystanes

Responsible Division:                    Environment & Planning

Officer:                                              Executive Manager Development and Building

File Number:                                    DA2022/0006  

 

 

1.      On, 20 November 2020, Federal Court of Australia has determined that the new generation Smart City payphone structure, which was previously exempt from the requirement for development consent, does not qualify as being “Low impact Facilities” under the Telecommunications Act 1997. As such, a Development Application and associated Building Information Certificate are now required for the use of the existing Telstra payphone structure at the subject site.

2.      Development Application No. DA2022/0006 was accepted on 21 January 2022 for the use of the telecommunications facility with a third party advertising on a 32 inches electronic display screen incorporated in the payphone structure on the public footpath adjacent to 665-669 Merrylands Road, GREYSTANES NSW 2145.

 

3.      The application was publicly notified to occupants and owners of the adjoining properties for a period of 14 days between 2 February 2022 and 16 February 2022. In response, no submissions were received.

4.      The subject application has been assessed against the relevant provisions of the relevant State Environmental Planning Policies, Cumberland Local Environmental Plan 2021 and the Cumberland Development Control Plan 2021.

5.      The application is referred to the Panel as Council is the owner of the land where this development is proposed.

6.      The application is recommended for conditional approval subject to the conditions as provided in Attachment 1. [Insert summary of report]

The subject site is located on the public footpath adjoining No. 665-669 Merrylands Road, Greystanes (Greystanes Shopping Centre). A site inspection of the payphone structure carried out on 15 February 2022 confirmed that the structure being a Smart City payphone, the 32 inches screen within the front elevation and 75 inches on the rear elevation currently exists, refer to Figures 3 and 4 below.

 

The site is zoned B2 Local Centre and is surrounded by B2 zoned land adjoining to the west, R2 Low Density Residential zoned land to the north and east and R3 Medium Density Residential zoned land to the south and west. The existing developments adjoining the site include commercial use development comprising of retail tenancies and single and two storey dwelling houses.

 

Figure 1 – Aerial view of subject site

ii)              

iii)           Figure 2 – Zoning Map of subject site

 

Figure 3 – Street view of subject structure	Figure 4 – Street view of subject structure

 

 

Council has received a development application for the use of an existing new generation Smart City payphone booth erected within the footpath adjoining No. 665-699 Merrylands Road, Greystanes as a telecommunications facility with a third party advertising on a 32 inches electronic display screen within the front elevation, which is incorporated in the payphone structure.

 

The payphone structure measures 2.735 metres in height and 1.2 metres in width and includes an electronic display area above the payphone measuring 381mm x 687mm (32 inches) proposed to be used for a third party advertising.

 

The payphone structure and the 32 inch electronic display screen have been constructed and installed and are currently in operation.

 

It is acknowledged that the electronic display on the rear elevation of the structure, measuring 75 inches, has been approved by Council under DA2019/87. This component has been installed and is currently operating.

 

A Building Information Certificate (BIC) is required for the payphone structure and the associated 32 inches electronic display; conditions of consent have been recommended to address this requirement.

 

•        Development Application DA2019/87 was approved on 29 May 2019 for the use of a digital display sign affixed to a Telstra payphone rear elevation for a third party advertising.

 

•        On 20 November 2020, the Federal Court of Australia (e.g., Telstra Corporation Limited v Melbourne City Council [2021] HCASL 82) has determined that the new generation payphone structure which was previously exempt from the requirement for development consent, does not qualify as “Low impact Facilities” under the Telecommunications Act 1997. As a result, existing structures already built on Council’s land require development consent for its use as a telecommunication facility.

 

•        A Pre Lodgement meeting was held with the applicant on 27 May 2021 under PL2021/0049 and the meeting notes advised the applicant to lodge a Development Application and associated Building Information Certificate to obtain the required approvals for all components of the structure/telecommunication facility.

 

The applicant has provided a Statement of Environmental Effects prepared by Urbis dated November 2021 and was received by Council on 21 January 2022 in support of the application.

 

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.

 

The application was not required to be referred to any of Council’s internal departments for review.

 

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

 

 

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

 

(a)     Roads Act 1993

 

As the proposal is not located adjacent to a classified road, approval pursuant to subclause 138(1) of the Roads Act 1993 is not required for this development application.

 

(b)     Telecommunications (Low-Impact Facilities) Determination 2018

 

 

Pursuant to the Telecommunications (Low-impact Facilities) Determination 2018, the proposal is not classified as a low impact facility and as such, state and local planning requirements apply.  

 

(c)     Telecommunications Act 1997

 

The Telecommunications Act establishes a framework for regulating the actions of telecommunications carriers and service providers. The existing payphone structure was previously built pursuant to Schedule 3 of the Telecommunications Act 1997.

 

 

 

 

(d)     Telecommunications Code of Practice 2018

 

The Telecommunications Code of Practice 2018 commenced on 20 February 2018 and replaces the Telecommunications Code of Practice 1997. The Code of Practice imposes a range of requirements on service providers that engage in, or propose to engage in a land entry activity. The Code also requires the applicant to comply with industry best practice, in the design, planning and installation of facilities. The proposed development relates to the use of an existing payphone structure that was built pursuant to Schedule 3 of the Telecommunications Act 1997.

 

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

 

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

 

Clause 115 – Development permitted with consent

(1) Development for the purposes of telecommunications facilities, other than development in clause 114 or development that is exempt development under clause 20 or 116, may be carried out by any person with consent on any land.

 

(3) Before determining a development application for development to which this clause applies, the consent authority must take into consideration any guidelines concerning site selection, design, construction or operating principles for telecommunications facilities that are issued by the Secretary for the purposes of this clause and published in the Gazette.

 

Pursuant to clause 115(3) of the ISEPP 2007, before determining the proposal, the consent authority must take into consideration of any guidelines concerning the site selection, design, construction and operation of telecommunication facilities. The proposal was accompanied with the report of compliance to the principles of NSW Telecommunications Facilities Guideline including Broadband 2010. These principles are:

 

• Principle 1: A Telecommunications facility is to be designed and sited to minimise

  visual impact;

• Principle 2: Telecommunications facilities should be co-located wherever practical;

• Principle 3: Health standards for exposure to radio emissions will be met; and

• Principle 4: Minimise disturbance and risk and maximise compliance.

 

These matters have been considered as part of the assessment of this application and are considered satisfactory. Refer to Attachment 4.

 

(b)     State Environmental Planning Policy No 64—Advertising and Signage

 

The proposed signage is ‘advertisement’ as defined under SEPP 64 as follows:

 

Advertisement means signage to which Part 3 applies and includes any advertising structure for the advertisement

 

The subject proposal is subject to assessment under Part 3 of SEPP 64 and the guidelines included in Schedule 1 of the Policy.

 

Clause	Comments
8 Granting of consent to signage   A consent authority must not grant development consent to an application to display signage unless the consent authority is satisfied:   (a) that the signage is consistent with the objectives of this Policy as set out in clause 3 (1) (a), and (b) that the signage the subject of the application satisfies the assessment criteria specified in Schedule 1.	Satisfactory.  Assessment of the proposal has concluded that the design of the proposed signage is compatible with the character of the area which is predominantly for business use.  The location of the signage is considered suitable and will not have any adverse impact on the amenity of the surrounding developments.
10 Prohibited advertisements   (1) Despite the provisions of any other environmental planning instrument, the display of an advertisement is prohibited on land that is an environmentally sensitive area, heritage area (excluding railway stations), natural or other conservation area, open space, waterway, residential (but not a mixed residential and business zone or similar zone), scenic protection area, national park, nature reserve (2) This clause does not apply to the following:   (a) The Mount Panorama Precinct. (b) The display of an advertisement at a public sporting facility situated on land zoned public recreation under an EPI being an advertisement that provides information about the sponsors of the teams or organisations using the sporting facility or about the products of those sponsors.	The site is not located on land that is an environmentally sensitive area and is not located nearby to a heritage conservation area.
12 Consent Authority   For the purposes of this Policy, the consent authority is— (a)  the council of a local government area in the case of an advertisement displayed in the local government area (unless paragraph (c), (d) or (e) applies), or (b)  TfNSW in the case of an advertisement displayed on a vessel, or (c)  the Minister for Planning in the case of an advertisement displayed by or on behalf of RailCorp, NSW Trains, Sydney Trains, Sydney Metro or TfNSW on a railway corridor, or (d)  the Minister for Planning in the case of an advertisement displayed by or on behalf of RMS on— (i)  a road that is a freeway or tollway (under the Roads Act 1993) or associated road use land that is adjacent to such a road, or (ii)  a bridge constructed by or on behalf of TfNSW on any road corridor, or (iii)  land that is owned, occupied or managed by TfNSW, or (e)  the Minister for Planning in the case of an advertisement displayed on transport corridor land comprising a road known as the Sydney Harbour Tunnel, the Eastern Distributor, the M2 Motorway, the M4 Motorway, the M5 Motorway, the M7 Motorway, the Cross City Tunnel or the Lane Cove Tunnel, or associated road use land that is adjacent to such a road.	Council is considered the consent authority for the subject proposal.

 

13 Matters for consideration   (1)   A consent authority (other than in a case to which subclause (2) applies) must not grant consent to an application to display an advertisement to which this Policy applies unless the advertisement or the advertising structure, as the case requires: (a)  is consistent with the objectives of this Policy as set out in clause 3 (1) (a), and (b)  has been assessed by the consent authority in accordance with the assessment criteria in Schedule 1 and the consent authority is satisfied that the proposal is acceptable in terms of its impacts, and (c)  satisfies any other relevant requirements of this Policy.

The proposed signage is considered to be in a suitable location and will have acceptable impacts on the local area.   The development application is limited to the use of the existing sign on the payphone for third party advertising. The third party advertising will be displayed on a screen that is part of a public payphone operated by Telstra. The subject site is located on the pedestrian footpath and will not have any detrimental impacts on the traffic flows within the locality.

14 Duration of Consents   (1) A consent granted under this part ceases to be in force: (a) on the expiration of 15 years after the date on which the consent becomes effective and operates (b) if a lesser period is specified by the consent authority, that lesser period   (2) The consent authority may specify a period less than 15 years only if: (a) before the commencement of this Part, the consent authority had adopted a policy of granting consents in relation to applications to display advertisements for a lesser period and the duration of the consent authority is consistent with that policy (b) the area in which the advertisement is undergoing change in accordance with an EPI that aims to change the nature and character of development and where the proposed advertisement would be inconsistent with that change (c) the specification of a lesser period if required by another provision of this Policy.

Council will impose a condition restricting the consent to a period of fifteen (15) years.

 

16 Transport Corridor Land   (1)  Despite clause 10 (1) and the provisions of any other environmental planning instrument, the display of an advertisement on transport corridor land is permissible with development consent in the following cases— (a)  the display of an advertisement by or on behalf of RailCorp, NSW Trains, Sydney Trains, Sydney Metro or TfNSW on a railway corridor, (b)  the display of an advertisement by or on behalf of TfNSW on— (i)  a road that is a freeway or tollway (under the Roads Act 1993) or associated road use land that is adjacent to such a road, or (ii)  a bridge constructed by or on behalf of TfNSW on any road corridor, or (iii)  land that is owned, occupied or managed by TfNSW and that is within 250 metres of a classified road, (c)  the display of an advertisement on transport corridor land comprising a road known as the Sydney Harbour Tunnel, the Eastern Distributor, the M2 Motorway, the M4 Motorway, the M5 Motorway, the M7 Motorway, the Cross City Tunnel or the Lane Cove Tunnel, or associated road use land that is adjacent to such a road.   (2)  Before determining an application for consent to the display of an advertisement in such a case, the Minister for Planning may appoint a design review panel to provide advice to the Minister concerning the design quality of the proposed advertisement.   (3)  The Minister must not grant consent to the display of an advertisement in such a case unless— (a)  the relevant local council has been notified of the development application in writing and any comments received by the Minister from the local council within 28 days have been considered by the Minister, and (b)  the advice of any design review panel appointed by the Minister has been considered by the Minister, and (c)  the Minister is satisfied that the advertisement is consistent with the Guidelines.   (4)  This clause does not apply to the display of an advertisement if the Minister determines that display of the advertisement is not compatible with surrounding land use, taking into consideration any relevant provisions of the Guidelines.

The site is not situated within land designated as a transport corridor and as such, Clause 16 is not applicable.

17   Advertisements with display area greater than 20 square metres or higher than 8 metres above ground   (1)  This clause applies to an advertisement: (a)  that has a display area greater than 20 square metres, or (b)  that is higher than 8 metres above the ground.   (2)  The display of an advertisement to which this clause applies is advertised development for the purposes of the Act.   (3)  The consent authority must not grant consent to an application to display an advertisement to which this clause applies unless: (a)  the applicant has provided the consent authority with an impact statement that addresses the assessment criteria in Schedule 1 and the consent authority is satisfied that the proposal is acceptable in terms of its impacts, and (b)  the application has been advertised in accordance with section 79A of the Act, and (c)  the consent authority gave a copy of the application to RMS at the same time as the application was advertised in accordance with section 79A of the Act if the application is an application for the display of an advertisement to which clause 18 applies.

Clause 17 does not apply to the proposed development for the following reasons:   ·   The proposed signage has an area of 0.26m2 which does not exceed an area of 20m2; and D1        ·   Has a maximum height of 1.886 metres above ground.

 

18   Advertisements greater than 20 square metres and within 250 metres of, and visible from, a classified road   (1)  This clause applies to the display of an advertisement to which clause 17 applies, that is within 250 metres of a classified road any part of which is visible from the classified road.   (2)  The consent authority must not grant development consent to the display of an advertisement to which this clause applies without the concurrence of RMS.   (3)  In deciding whether or not concurrence should be granted, RMS must take into consideration: (a)  the impact of the display of the advertisement on traffic safety, and (b)  the Guidelines. (c)    (Repealed)   (4)  If RMS has not informed the consent authority within 21 days after the copy of the application is given to it under clause 17 (3) (c) (ii) that it has granted, or has declined to grant, its concurrence, RMS is taken to have granted its concurrence.   (5)  Nothing in this clause affects clause 16.   (6)  This clause does not apply when the Minister for Planning is the consent authority.	The proposed sign has an area of 0.26m2 and is not located on a classified road. As such, RMS referral is not required and Clause 18 is not applicable.
19   Advertising display area greater than 45 square metres   The consent authority must not grant consent to the display of an advertisement with an advertising display area greater than 45 square metres unless— (a)  a development control plan is in force that has been prepared on the basis of an advertising design analysis for the relevant area or precinct, or (b)  in the case of the display of an advertisement on transport corridor land, the consent authority is satisfied that the advertisement is consistent with the Guidelines.	The proposed advertisement is less than 45m2, as such Clause 19 does not apply.
20   Location of certain names and logos   (1)  The name or logo of the person who owns or leases an advertisement or advertising structure may appear only within the advertising display area.   (2)  If the advertising display area has no border or surrounds, any such name or logo is to be located— (a)  within the advertisement, or (b)  within a strip below the advertisement that extends for the full width of the advertisement.   (3)  The area of any such name or logo must not be greater than 0.25 square metres.   (4)  The area of any such strip is to be included in calculating the size of the advertising display area	All logos associated with the proposed third party advertising is integrated within the payphone structure. There are no logos within the frames or devices to be erected.

 

 

 

The proposed development is affected by the following consolidated State Environmental Planning Policies that came into effect on 1 March 2022. No savings provision is indicated within the new SEPPs, as no policy changes have been made. The SEPP consolidation does not change the legal effect of the existing SEPPs, with section 30A of the Interpretation Act 1987 applying to the transferred provisions. In this regard, the following matters have been incorporated in the planning assessment of the proposed development under s4.15 of the Environmental Planning and Assessment Act 1979.

 

 

Local Environmental Plans

 

Cumberland Local Environmental Plan 2021 (CLEP 2021)

 

The provision of the CLEP 2021 is applicable to the development proposal. It is noted that the development achieves compliance with the key statutory requirements of the CLEP 2021 and the objectives of the B2 Local Centre Zone.

 

(a)     Permissibility:

 

The proposed development is defined as a ‘telecommunications facility’ and ‘signage’ and are permissible in the B2 Local Centre Zone with consent.

 

Telecommunications facility means—

(a)  any part of the infrastructure of a telecommunications network, or

(b)  any line, cable, optical fibre, fibre access node, interconnect point equipment, apparatus, tower, mast, antenna, dish, tunnel, duct, hole, pit, pole or other structure in connection with a telecommunications network, or

(c)  any other thing used in or in connection with a telecommunications network.

 

signage means any sign, notice, device, representation or advertisement that advertises or promotes any goods, services or events and any structure or vessel that is principally designed for, or that is used for, the display of signage, and includes any of the following—

(a)  an advertising structure,

(b)  a building identification sign,

(c)  a business identification sign,

but does not include a traffic sign or traffic control facilities.

 

A comprehensive LEP assessment is contained in Attachment 7. 

 

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

 

N/A

 

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

 

The Cumberland DCP 2021 provides guidance for the design and operation of development to achieve the aims and objectives of the Cumberland LEP 2021.

 

A comprehensive assessment and compliance table is contained in Attachment 8.

 

The proposed development complies with the provisions of the Cumberland DCP 2021 and 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))

 

Advertised (Council Website)

Mail

Sign

Not Required

 

In accordance with Council’s Notification requirements contained within the Cumberland DCP 2021, the proposal was publicly notified for a period of 14 days between 2 February 2022 and 16 February 2022. No submissions were received in respect of the proposed development.

 

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

 

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

 

 

The development would not require the payment of contributions in accordance with Cumberland Local Infrastructure Contributions Plan 2020.

 

 

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, Environmental Planning and Assessment Regulation 2000, Roads Act 1993, Telecommunications Act 1997, State Environmental Planning Policy (Biodiversity and Conservation) 2021, State Environmental Planning Policy (Resilience and Hazards) 2021, State Environmental Planning Policy (Transport and Infrastructure) 2021, State Environmental Planning Policy (Industry and Employment) 2021,Cumberland LEP 2021 and Cumberland DCP 2021 and is considered to be satisfactory for approval, subject to conditions.

 

 

 

 

 

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

 

Report Recommendation: That Development Application No. DA2022/0006 for the use of the land as a telecommunications facility with third party advertising on a 32 inch electronic display screen incorporated in the payphone structure on the public footpath adjacent to 665-669 Merrylands Road, GREYSTANES NSW 2145 be Approved subject to attached conditions.

 

1.      Draft Notice of Determination  

2.      Site Plan  

3.      Elevation Plan  

4.      NSW Telecommunications Facilities Guideline Including Broadband 2010  

5.      State Environmental Planning Policy No. 64 - Advertising and Signage  

6.      Cumberland Local Environmental Plan 2021  

7.      Cumberland Development Control Plan 2021  

8.      Draft Reasons for Recommendation   

 

Attachment 1

Draft Notice of Determination

 9 March 2022

Attachment 2

Site Plan

 9 March 2022

Attachment 3

Elevation Plan

 9 March 2022

Attachment 4

NSW Telecommunications Facilities Guideline Including Broadband 2010

 9 March 2022

Attachment 5

State Environmental Planning Policy No. 64 - Advertising and Signage

 9 March 2022

Attachment 6

Cumberland Local Environmental Plan 2021

 9 March 2022

Attachment 7

Cumberland Development Control Plan 2021

 9 March 2022

Attachment 8

Draft Reasons for Recommendation

 9 March 2022