8 March 2023

A meeting of the Cumberland Local Planning Panel will be held at 11.30am via Zoom on Wednesday, 8 March 2023.

Business as below:

Yours faithfully

Peter J. Fitzgerald

General Manager

ORDER OF BUSINESS

1.      Receipt of Apologies

2.      Confirmation of Minutes

3.      Declarations of Interest

4.      Address by invited speakers

5.      Reports:

          -        Development Applications

          -        Planning Proposals

6.      Closed Session Reports

 

 8 March 2023

CONTENTS

Report No.  Name of Report                                                                                         Page No.

1       Development Applications

LPP005/23... Development Application for 20 Myee Street, Merrylands............................ 5

LPP006/23... Development Application for 191-201 Pitt Street, Merrylands.................. 253

LPP007/23... Development Application for 73 Bangor Street, Guildford........................ 327

 8 March 2023

 

 

 8 March 2023

 

Item No: LPP005/23

Development Application for 20 Myee Street, Merrylands

Directorate:                                       Environment and Planning

Responsible Officer:                       Executive Manager Development and Building

File Number:                                    DA2022/0417  

 

 

1.      Development Application No. DA2022/0417 was accepted on 12 August 2022 for the demolition of existing structures and construction of a one storey community facility including at-grade parking and tree removal.

2.      The application was publicly notified to occupants and owners of the adjoining properties for a period of 14 days between 25 August 2022 to 8 September 2022, and was further extended to 29 September 2022. The application was also publicly re-notified for a period of 14 days between 7 October 2022 and 21 October 2022. In response, 111 submissions were received, in which 34 submissions are considered unique that include 1 petition from 77 submitters and 1 pro-forma from 2 submitters. All of the submissions are objecting to the proposed development.

3.      The subject site is not listed as a heritage item or located within the heritage conservation area. The site however is located within immediate proximity of a heritage listed item with local significance in accordance with the Cumberland Local Environmental Plan 2021, which is an existing school building across the street, Merrylands East Public School (I214).

4.      The application is referred to the Panel as the proposal is considered to be contentious.

5.      The application is recommended for refusal subject to the reasons as discussed in the Council’s assessment report.

Subject Site and Surrounding Area

The subject site is rectangular in shape and legally described as Lot Z in DP 388342 with area of 1,005 square metres (by title). The site has a street frontage to Myee Street with lot’s width of 18.18m and depth of 55.64m. It has a 2m fall from the rear to the front. Existing improvements on the site include a single storey dwelling, a fibro shed within the front setbacks, a couple of metal sheds at the rear and a variety of small to mature trees are scattered throughout the site. The site is located across the road from the Merrylands East Primary School that is identified as a heritage listed item with local significance in accordance with the Cumberland Local Environmental Plan 2021 (I214). Surrounding land uses are typically single and double storey dwelling houses within the R3 Medium Density Residential zone. Merrylands Railway Station is situated approximately 900m walking distance from the site.

Figure 1 – Locality Plan of subject site

 

Figure 2 – Aerial view of subject site

Figure 3 – Street view of subject site

Figure 4 – Survey plan of the subject site

Description of the Development

Council has received a development application for demolition of existing structures and construction of a one storey community facility including at-grade parking and tree removal. A detailed breakdown of the development is provided below.

Demolition

-         Existing structures on the site.

-         Removal of most trees on site to accommodate the new development.

Construction

-         Two-way driveway and 7 car parking spaces, including 1 disabled car space, within the front setback.

-         Relocation of existing power pole within the nature strip to accommodate the proposed driveway.

-         Boundary fencing at the rear to the height of 1.8m from finished floor levels.

-         Partly covered front porch.

-         Multipurpose indoor and outdoor areas.

-         Lounge, store room, office, kitchenette, toilets and bin room.

Details of use

-         No. of staff on daily basis: 2 - 4 staff members.

-         Up to 30 - 40 people will visit the community facility during special events (Aftaars during Ramadan). A small shuttle bus will be provided for pick up and drop off to and from the railway station with capacity of up to 25 patrons.

The hours of operation are 7.00am to 9.30pm, 7 days a week.

-         Associated activities proposed are as follows.

Figure 5 – Proposed activities listed in the Plan of Management

-        Council notes that there are inconsistencies in some of the proposed activities listed between the plan of management and the traffic report, such as, during weekdays between 4pm-7pm.

Figure 6 – Proposed daily activities listed in the Traffic Report

History

Pre-lodgement application advice (PL-2021/0102) was issued on 30 November 2021 for demolition of existing structures and construction of a place of public worship to house 40-50 worshippers. The pre-lodgement advice identified significant matters of concern including insufficient parking and non-compliant to the required minimum lot size. It was concluded that the site is unsuitable to be developed for the purpose of a place of public worship.

Applicants Supporting Statement

The applicant has provided a Statement of Environmental Effects prepared by Local Approvals dated June 2022 and was received by Council on 12 August 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

Development Engineer

The development application was referred to Council’s Development Engineer for comment who has advised that the development proposal is not supported for reasons stated below.

1.      The parking rate as estimated by the revised traffic report submitted for the proposed community facility is not considered satisfactory. Sufficient on-site parking spaces have not been provided for people attending the premises. The development has the capacity to accommodate up to 70 people based on the seating plan provided. Where 16 car parking spaces are required for the special events as per the submitted traffic report, only 7 off-street parking space proposed. Reliance on the on-street parking spaces to meet the additional parking demand as per the traffic report and the proposed shortfall of 9 car parking spaces could not be supported in this instance.

2.      A safe and appropriate service bay for a coach/bus within the site in accordance with AS2890.2:2018 and appropriate turning area have not been provided on the site to ensure the coach/bus can enter and leave the site in a forward direction.

3.      The proposed stormwater management is not considered satisfactory for the following reasons.

-     Insufficient information provided to assess On-Site Detention (OSD) system design.

-     Overland flows maybe obstructed and “intercepted and accepted within” the property being developed due to unsatisfactory OSD and drainage design. 

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 not satisfactory, as insufficient information provided in the plan of management and acoustic report. The proposal cannot be supported in this instance.

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 tree removal proposed 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 with regard to the waste management proposed and therefore can be supported subject to recommended conditions of consent.

External Referrals

Endeavour Energy

Endeavour Energy has raised no concern with the proposal subject to the inclusion of conditions in any consent for the development to ensure the existing power pole has sufficient clearance to the proposed driveway and the available electricity services are adequate for the development.

PLANNING COMMENTS

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

State Environmental Planning Policies

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

(a)     State Environmental Planning Policy (Transport and Infrastructure) 2021

The provisions of the Transport and Infrastructure SEPP have been considered in the assessment of the development application.

Chapter 2 – Infrastructure

Clause 2.48 – Determination of development applications – other development

The proposed driveway is located within 5m of an exposed overhead electricity power line. The proposal was referred to Endeavour Energy, who raised no consent with the proposal subject to the inclusion of conditions in any consent for the development to ensure the existing power pole has sufficient clearance to the proposed driveway and the available electricity services are adequate for the development.

 

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

Chapter 4 – Remediation of Land

Clause 4.6 of Resilience and Hazards SEPP requires Council to be satisfied that the site is suitable or can be made suitable to accommodate the proposed development. The matters listed within Clause 4.6 have been considered in the assessment of the development application.

(c)     Statement Environmental Planning Policy (Biodiversity and Conservation) 2021

Chapter 2 –Vegetation in non-rural Areas

The proposal does not exceed the biodiversity offsets scheme threshold. Therefore, the proposed vegetation removal is considered acceptable. Please refer to the DCP compliance table for further discussion.

Chapter 10 – Sydney Harbour Catchment

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

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

Local Environmental Plans

Cumberland Local Environmental Plan 2021 (CLEP)

The provision of the CLEP is applicable to the development proposal.

(a)     Characterisation of Development:

The primary use of the building is identified as community facility, however the primary activities on the site as per the Plan of Management include religious lectures and gatherings and celebration of religious events, which are akin to a place of public worship rather than a community facility.

The principles on how to characterise a development can be found in Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114, in which Preston CJ states that the characterisation of the purpose of a use of land should be undertaken ‘at a level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on, not in terms of the detailed activities, transactions or processes’. The task of characterisation of a proposed development must also be done in a ‘common sense and practical way’. To determine whether a development is (or will be) for a particular purpose, an enquiry into how that purpose will be achieved by the development is necessary.

While community facility and place of public worship are both permissible land uses in the R3 Medium Density Residential zone with consent, the development is seeking for approval of the construction and use of the site as a community facility. The definition of both community facility and place of public worship within the CLEP 2021 is delineated as follows.

community facility means a building or place—

(a)     owned or controlled by a public authority or non-profit community organisation, and

(b)     used for the physical, social, cultural or intellectual development or welfare of the community,

but does not include an educational establishment, hospital, retail premises, place of public worship or residential accommodation.

place of public worship means a building or place used for the purpose of religious worship by a congregation or religious group, whether or not the building or place is also used for counselling, social events, instruction or religious training.

In the Department of Planning and Environment Circular PS 13-001, ‘How to characterise development’, it also states that ‘development is considered to be for a particular purpose if that purpose is the dominant purpose of the development. This purpose is the reason for which the development is to be undertaken or the end to which the development serves. A component of a development may have features that are both ancillary and independent. If this is the case, consider the following:

·        Is the component going to serve the dominant purpose of the development or is it independent?’

Council is not satisfied that the dominant purpose as a community facility is proposed in this instance. This also becomes more evident with the content of the supporting documentation submitted with the application in that the proposed activities will be similar to activities generally carried out in a place of public worship. The proposed development dominant activities include familiarising, teaching and application of a religion to everyday living and celebrating Aftaars dinner. These features of the proposed development are therefore independent and could not be contemplated as serving the purpose built community facility.

Placing a condition to restrict the use is also not considered as a practicable measure to manage ongoing operation of the development.

Following from above, it is considered that the proposed use and activities to be conducted within the facility has not been satisfactorily characterised to be considered a community facility, hence the application is recommended for refusal.

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

        

 

Figure 7 – Cumberland LEP 2021 Compliance Table

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

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

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

The CDCP provides guidance for the design and operation of development to achieve the aims and objectives of the CLEP.

A comprehensive assessment and compliance table is contained in Attachment 7. The following table highlights non-compliances with the CDCP, which relate primarily to setbacks, site coverage and parking provision.

Figure 8 – Cumberland DCP 2021 Compliance Table

As indicated in the compliance table above, the proposed development departs from controls in Parts E2, G3 and G4 of CDCP. Having regard to these departures, it is considered that the proposal performs unsatisfactorily from an environmental planning viewpoint as detailed in the above table. The non-compliances form part of the reasons for refusal.

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

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

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

The proposed development raises no concerns as to the relevant matters arising from the Environmental Planning and Assessment Regulations 2021 (EP&A Reg).

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

It is identified that the proposed development if approved would create issues in relation to traffic and parking, noise, intensity of use and stormwater drainage. For the reasons as presented within the report, the proposed development is not supported.

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. However, there are significant concerns as stated in the main body of the report that will adversely impact the existing residential amenity in the context of the site and surrounding locality. The proposal is therefore not supported in this instance.

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

In accordance with Council’s Notification requirements contained within the Cumberland Development Control Plan 2021, the proposal was publicly notified for a period of 14 days between 25 August 2022 to 8 September 2022. The notification period was extended to 29 September 2022. The application was publicly re-notified for a period of 14 days between 7 October 2022 and 21 October 2022. In response, 111 submissions were received, in which 34 submissions are considered unique that include 1 petition from 77 submitters and 1 pro-forma from 2 submitters. All of the submissions are objecting to the proposed development with nil disclosing a political donation or gift. The issues raised in the public submissions are summarised and commented on as follows:

Figure 9 – Submissions Summary Table

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

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

Cumberland Local Infrastructure Contributions Plan 2020

The development would require the payment of contributions in accordance with Cumberland Local Infrastructure Contributions Plan 2020 and pursuant to Section 7.12 of the EP&A Act, should the development be supported.

Disclosure of Political Donations and Gifts

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

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

 

 

1.      Draft Notice of Determination  

2.      Architectural Plans  

3.      Stormwater Plans  

4.      Plan of Management  

5.      Noise Assessment Report  

6.      Traffic Assessment Report  

7.      Submissions Received  

8.      Cumberland Local Environmental Plan 2021  

9.      Cumberland Development Control Plan 2021  

10.    Draft Reasons for Refusal   

 

Attachment 1

Draft Notice of Determination

 8 March 2023

Attachment 2

Architectural Plans

 8 March 2023

Attachment 3

Stormwater Plans

 8 March 2023

Attachment 4

Plan of Management

 8 March 2023

Attachment 5

Noise Assessment Report

 8 March 2023

Attachment 6

Traffic Assessment Report

 8 March 2023

Attachment 7

Submissions Received

 8 March 2023

Attachment 8

Cumberland Local Environmental Plan 2021

 8 March 2023

Attachment 9

Cumberland Development Control Plan 2021

 8 March 2023

Attachment 10

Draft Reasons for Refusal

 8 March 2023

 8 March 2023

 

Item No: LPP006/23

Development Application for 191-201 Pitt Street, Merrylands

Directorate:                                       Environment and Planning

Responsible Officer:                       Executive Manager Development and Building

File Number:                                    DA2022/0468  

 

 

1.      Development Application No. DA2022/0468 was accepted on 11 October 2022 for the alteration to parking arrangement including new access stairs and provision of signage.

2.      The application was publicly notified to occupants and owners of the adjoining properties for a period of fourteen (14) days between 27 October 2022 and 10 November 2022. In response, no submissions were received.

3.      The subject site is the existing Stockland Merrylands Mall. The proposal involve the following building works:

-     Construction of a new access stairs located in the middle of the site to provide access between the split level rooftop car park area.

-     Erection of two (2) LED signages (1m x 2.96m each) to the eastern side of the shopping mall along the Pitt Street frontage.

-     Erection of one (1) LED signage (1m x 2.96m) to the western side of the shopping mall along the Treves Street frontage.

-     Erection of a new LED signage with advertising features (10.6m x 12.8m) is proposed along the northern façade of the shopping mall above the recessed Neil Street car park entry adjoins to the existing pedestrian / cycling path.

4.      The variation is as follow:

 

 

5.      The application is being reported to the Cumberland Local Planning Panel for determination as the development application contravenes a development standard in the Cumberland Local Environmental Plan 2021 by more than 10%.

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

Subject Site and Surrounding Area

The site forms Lot 11 on DP 1178684 and is known as 191-201 Pitt Street, Merrylands NSW 2160. The site has an area of 6.609 ha (66,090 sqm). The allotment is bounded by Treves Street to the east, McFarlane Street to the south, Pitt Street to the east and Neil Street to the north.

A site inspection of the premises carried out on 4 November 2022 confirmed that the existing development on site is the Stockland Merrylands Shopping Mall comprising a shopping centre with various commercial tenancies, food and drink premises and child care facilities. The existing development has approximately 25,799 sqm of leasable floor area and 3,090 car parking spaces.

The existing developments adjoining the site include commercial and residential developments of various scales comprising service station and mechanical workshop at the corner of Neil Street and Pitt Street, three to four storey walk-up flats along Neil Street and Treves Street. The Merrylands Memorial Park is along located to the west of the site on Treves Street. Opposite McFarlane Street to the south of the site are single to three storey commercial developments near Pitt Street and the new Civic Square for Merrylands and mixed used development comprising commercial tenancies and shop-top housing are currently under construction near the Treves Street. 

 

 

 

 

Figure 1 – Locality Plan of subject site

Figure 2 – Aerial view of subject site

Figure 3 – Street view of subject site (Pitt Street frontage)

 

Figure 4 – Street view of subject site (Neil Street car park entry)

Figure 5 – Street view of subject site (Treves Street frontage)

Description of the Development

Council is in receipt of a development application that was accepted on 11 October 2022 seeking approval for alterations to parking arrangement including new access stairs and provision of signage. The detailed breakdown of the proposal is as below:

Construction:

·        Modification to the existing rooftop car park to provide an additional pedestrian stair;

·        Installation of two (2) new illuminated LED car park signages (1.00m x 2.96m) to Pitt Street frontage;

·        Installation of one (1) new illuminated LED car park signage (1.00m x 2.96m) to Treves Street frontage;

·        Installation of a new business identification sign with new illuminated LED car park signage (10.60m x 12.80m) to the Neil Street car park entry facing along the existing pedestrian / bicycle path along the northern elevation of the existing shopping mall.

 

It is noted that the proposed new business identification sign with new digital car park signage to Neil Street will replace the existing business identification sign.

Moreover, the proposal will result in the reduction of one (1) car parking space within the existing P6 level rooftop car park to accommodate the proposed new access stairs. However, the number of car parking spaces will remain compliant with the car parking requirement to service the existing Stockland Shopping Mall.

Figure 5 – Locations of the proposed new structures

 

History

Stockland Shopping Mall currently occupies the site, there are extensive CDCs, DAs, MODs and OCs for this site “191-201 Pitt Street Merrylands” over a number of years which have been reviewed to clarify the use and history of the site. No conflicting applications were uncovered which impact the subject proposal.

Applicants Supporting Statement

A Statement of Environmental Effects dated 2 September 2022 (Project No.: 6126AH Final Version) and a Clause 4.6 Variation Request to the Height of Building dated 29 August 2022 (Project No. 2126AH Rev_1, Draft Version) prepared by DIP Planning Consultants were submitted with the application.

Contact with Relevant Parties

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

 

INTERNAL REFERRALS

Development Engineer

The development application was referred to Council’s Development Engineer for comment who has advised that the development proposal is satisfactory given the proposed works is not affecting the existing traffic and vehicular movement within and around the property and therefore can be supported subject to recommended conditions of consent.

Building Surveyor

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

Contribution Officer

The development application was referred to Council’s Contribution Officer for comment who has confirmed 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 7.12 of the Environmental Planning and Assessment Act 1979, calculated on the cost of works. A total contribution of $679.00 would be payable prior to the issue of a Construction Certificate.

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))

State Environmental Planning Policies

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

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

Chapter 6 –Water Catchments

Clause 10.18 – General

The subject site is identified as being located within the area affected by State Environmental Planning Policy (Biodiversity and Conservation) 2021. An assessment identifies that no issues arise when considered under the relevant provisions of the State Policy.

However, the proposed additional works to the existing Stockland Shopping Mall and raises no issues to the Sydney Harbour Catchment as no impact on the Sydney Harbour Catchment is envisaged.

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

Chapter 2 – Coastal Management

Not applicable. The subject site is not identified as a coastal wetland or ‘land identified as “proximity area for coastal wetlands” or coastal management area.

Chapter 4 – Remediation of Land

Clause 4.6 of Resilience and Hazards SEPP 2021 requires Council to be satisfied that the site is suitable or can be made suitable to accommodate the proposed development. The matters listed within Clause 4.6 have been considered in the assessment of the development application.

(c)     Statement Environmental Planning Policy (Industry and Employment) 2021

Chapter 3 Advertising and Signage

The provisions of the Industry and Employment SEPP 2021 apply to the proposed business identification signage. Although Treves Street, Neil Street and Pitt Street area identified as classified roads, a review of the proposal confirmed the proposal does not require any concurrence approval from the Transport of NSW in accordance with Part 3.2 of the Industry and Employment SEPP 2021 and the scale of the proposed signages is considered suitable to the existing land use as the Stockland Shopping Mall on site.

A comprehensive assessment and compliance table is contained in Attachment 3, Appendix A.

Local Environmental Plans

Cumberland Local Environmental Plan 2021

The provision of the Cumberland Local Environmental Plan 2021 (CLEP) is applicable to the development proposal. It is noted that the development generally complies 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 ‘business identification sign’ and ancillary works to the shopping mall are permissible in the B4 Mixed Use zone with consent.

building identification sign means 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.

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.

The relevant matters to be considered under CLEP 2021 and the applicable clauses for the proposed development are summarised below. A comprehensive CLEP 2021 assessment is contained in Attachment 4, Appendix B.

Figure 6 – Cumberland Local Environment Plan 2021 Compliance Table

(b)     Clause 4.6 – Variation to Building Height

Clause 4.6 allows the consent authority to contravene 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 contravene the development standard for height of buildings. Based on various case laws established by the Land and Environment Court of NSW such as Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 (“Initial Action”) and Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245 and earlier cases Four2five P/L v Ashfield Council [2015] NSWLEC 9, Randwick City Council v Micaul Holdings P/L [2016] NSW LEC7 and Zhang v Council of the City of Ryde [2016] NSWLEC 1179, a 3 part assessment framework for a variation request proposed and is discussed in detail below.

A copy of the Clause 4.6 Variation Request to the Height of Building Development Standard under Clause 4.3 of CLEP 2021 prepared by DFP Planning Consultants is contained as Attachment 5.

The proposal seeks to contravene the Height of Building Development Standard under Clause 4.3 of the CLEP 2021 that requires the height of building not to exceed 14m (majority western portion of site) and 53m (minor eastern portion of site).

Figure 7 – Height of Building Map

(beige coloured western portion as 14m and purple coloured eastern portion as 53m)

 

The maximum height of the proposed new business identification sign located above the Neil Street car parking entrance will reach the 15.8m and the access stairs between P5 and P6 car park level will reach 15.2m (RL32.82m)  when measured from the existing natural ground level. This presents the maximum 1.8m above the maximum allowable height of building to this part of the site and 12.86% of variation to this development standard.

 

Figure 8 – The section of access stairs located in the middle of the rooftop car park area that exceeds the maximum height of building allowance.

 

 

 

Figure 9 – The section of business identification sign facing Neil Street car park entry exceed the maximum height of building allowance.

 

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

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

Applicant’s justification: Clause 4.6(1) of the LEP states the objectives of the clause as follows:

(a)     to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b)     to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

In the Judgment of Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 (“Initial Action”), Preston CJ ruled that there is no provision that requires the applicant to demonstrate compliance with these objectives or that the consent authority be satisfied that the development achieves these objectives. Furthermore, neither cl4.6(3) nor cl4.6(4) expressly or impliedly requires that development that contravenes a development standard “achieve better outcomes for and from development”.

Accordingly, the remaining subclauses of cl4.6 provide the preconditions which must be satisfied before a consent authority may grant development consent to a development that contravenes a development standard imposed by an environmental planning instrument. These preconditions are discussed hereunder.

Planner’s comment: It is noted that the proposed business identification sign are ancillary to the existing Stockland Shopping Mall. The proposal will not amend the principal use of the site as the Stockland Shopping Mall, Therefore, it is agreed that the proposal will remain compliant with the objectives of the B4 Mixed Use zone.

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

Applicant’s justification: The proposed development exceeding the height of buildings control does not result in any increase to the existing density of Stockland Merrylands and are ‘attachments’ to the existing building to improve safety and functionality (in the case of the pedestrian stair) and building aesthetics (in the case of the proposed chevrons). The proposed signage structure improvements will enhance the Neil Street façade and contribute to a lessening of the visual impact of an unarticulated car park façade.

In relation to the visual impact on the adjoining residential properties the chevrons over the height limit are set in front of the existing car park structure and within the existing signage structure and therefore the additional visual impact is minimal.

The proposed rooftop pedestrian stair will not be visible from the public domain and is not considered to alter the existing shopping centre’s compatibility with the character of the locality. The proposed improvements to the existing Neil Street signage structure, including chevrons over the height limit, will enhance the façade of the shopping centre and result in an improved contribution to the mixed commercial/residential character of the area.

The proposed development will not increase overshadowing or reduce privacy for adjoining properties. The pedestrian stair is in the centre of the existing rooftop, well away from any adjoining property. The proposed signage structure is on the northern façade of the car park and any additional overshadowing would be over the shopping centre itself, and there are no privacy impacts from the signage structure improvements.

Planner’s comment: The proposed development is consistent with the B4 zone objectives as it will not amend the use of the existing premises as Stockland Shopping Mail. It is very minor in nature which will not create additional shadow overcast on the neighbouring properties nor visual impact to the streetscape. It is believed that the proposal is consistent with the objectives of the height of buildings development standard.

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

Applicant’s justification: The proposed development is considered to be consistent with the objectives of the height of buildings development standard as:

·    The proposed development exceeding the height of buildings control does not result in any increase to the existing density of Stockland Merrylands and are ‘attachments’ to the existing building to improve safety and functionality (in the case of the pedestrian stair) and building aesthetics (in the case of the proposed chevrons).

·    The proposed rooftop pedestrian stair will not be visible from the public domain and is not considered to alter the existing shopping centre’s compatibility with the character of the locality. The proposed improvements to the existing Neil Street signage structure, including chevrons over the height limit, will enhance the façade of the shopping centre and result in an improved contribution to the mixed commercial/residential character of the area.

·    The proposed signage structure improvements are considered an enhancement to the Neil Street façade and in this sense will contribute to a lessening of the visual impact of an unarticulated car park façade. In relation to the visual impact on the adjoining residential properties the chevrons over the height limit are set in front of the existing car park structure and within the existing signage structure and therefore the additional visual impact is minimal.

·    The proposed development will not increase overshadowing or reduce privacy for adjoining properties. The pedestrian stair is in the centre of the existing rooftop, well away from any adjoining property. The proposed signage structure is on the northern façade of the car park and any additional overshadowing would be over the shopping centre itself, and there are no privacy impacts from the signage structure improvements.

Planner’s comment: The proposed height exceedance is considered very minor in nature and is reasonable as the proposed development meets the underlying intent of the control. It is considered that strict adherence to the height of building development standard would result in a negligible improvement to the appearance of the building and the amenity of the surrounding properties. Compliance with the development standard is considered as being unnecessary in this instance. It is further noted that the proposed stairs and signages are ancillary structures of the building mass while the remainder of the building mass remains as approved previously.

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

Applicant’s justification: The site-specific environmental planning grounds that support the proposed variation to the height of buildings development standard in this circumstance are detailed in the SEE, supported by the accompanying architectural plans, and are summarised below:

i)       The proposed non-compliances are within the existing building envelope.

The pedestrian stair serves the upper car parking deck which is slightly above the 14m height control. Therefore any additional building element (such as balustrading) will exceed the height control. This is a site specific circumstance and the pedestrian stair is wholly beneath the existing balustrade height at each level (P6 to P5) and therefore no greater in height than other elements of the car parking structure.

The proposed chevrons to the Neil Street signage structure are within an existing steel frame and are replacing existing louvres.

Given the proposed works are within existing structures, the additional impact is considered negligible.

Containing the works within existing structures is considered an environmental planning ground to support he proposed variation.

ii)      The proposed pedestrian stair seeks to address and car park safety issue whereby persons are utilising the car ramp to traverse between P6 and P5. The provision of a pedestrian stair will separate vehicular and pedestrian movements in this location. The improvement of safety is an environmental planning ground to support the proposed variation.

iii)     The improvements to the Neil Street façade are part of a broader set of façade improvements proposed by Stockland to improve wayfinding and visually enhance the appearance of Stockland Merrylands. The chevrons are both aesthetic and practical. To achieve consistency with the existing signage framework the chevrons match the existing signage. If the chevrons were to comply then the design outcome would not be aesthetically pleasing. The proposed height variation achieves a better design outcome for wayfinding and aesthetic improvements.

Planner’s comment: The current proposal is supported from an environmental planning perspective and demonstrates and there is merit in varying the height control to achieve a better functionality of the site.

The above discussion demonstrates that there are sufficient environmental planning grounds to justify the departure from the control.

Conclusion:

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

It is the view of Council Officers that justification provided is satisfactory and having considered the application on its merit, the exception to the maximum 14m building height development standard is considered acceptable in this instance.

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

(a)     State Environmental Planning Policy Amendment (Land Use Zones) (No 5) 2022 and Standard Instrument (Local Environmental Plans) Order 2006

State Environmental Planning Policy Amendment (Land Use Zones) (No 5) 2022 will commence on the 26 April 2023. However, the Policy is repealed at the beginning of the day following the day on which the Policy commences.

On this day (26 April 2023), significant changes to the Cumberland Local Environmental Plan 2021 will commence. All matters relating to Business Zones and Industrial Zones are repealed and instead replaced with new Employment zones as follows:

·    E1 Local Centre.

·    E2 Commercial Centre.

·    E3 Productivity Support.

·    E4 General Industrial.

This will also impact upon several other clauses of the Cumberland Local Environmental Plan 2021 and how assessments are undertaken.

At the time the new provisions commence, the site would be located within Zone “E2 Commercial Centre”. Commercial premises would be permitted with consent within the new zone.

In addition, the development would be satisfactory in relation to the new objectives applied to the zone.

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

The Cumberland Development Control Plan 2021 (CDCP) provides guidance for the design and operation of development to achieve the aims and objectives of the CLEP 2021. A review of the CDCP 2021 confirmed Part C, F2-6, G1, G3, G4 and G8 apply to development on this site. However, the review against all relevant parts of the CDPC 2021 confirmed the proposal will not result in any changes to the design of the original development approval with the exception to the streetscape, façade and signage control given that the proposal relates to access stairs and signage ancillary to the existing Stockland Shopping Mall. Therefore, no further assessment against Part C, F2-6, G3, G4 and G8 will be required.

However, an assessment against Part G1 of the CDCP 2021 will be required as this relates to the subject of the proposal. The information submitted with the application demonstrate a full compliance with Part G1 of the CDCP 2021.

Part G1 – Advertising and Signage

It is noted that the proposed signage will be used in conjunction to the operation of the existing Stockland Shopping Mall which will not contain any flashing lights. As advised by the applicant, the signage facing Neil Street car park entrance will be subject to light curfew from 9:00pm everyday to minimise the light spillage towards the rear elevations of the residential flat buildings along Neil Street. In this regard, the proposal remains fully compliant with all relevant parts including Part G1 of the CDCP 2021 and an assessment table against the relevant parts of the CDCP 2021 is not required in this instance.

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

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

The provisions of the 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 2021 (EP&A Reg).

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

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

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

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

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

In accordance with Council’s Notification requirements contained within the CDCP 2021, the proposal was publicly notified for a period of fourteen (14) days between 27 October 2022 and 10 November 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 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 7.12 of the EP&A Act, calculated on the cost of works. A total contribution of $679.00 would be payable prior to the issue of a Construction Certificate.

Disclosure of Political Donations and Gifts

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

The development application has been assessed in accordance with the relevant requirements of the Environmental Planning and Assessment Act 1979, Environmental Planning and Assessment Regulation 2021, State Environmental Planning Policy (Biodiversity and Conservation) 2021, State Environmental Planning Policy (Resilience and Hazards) 2021, Statement Environmental Planning Policy (Industry and Employment) 2021, CLEP 2021 and CDCP 2021 and is considered to be satisfactory for approval subject to conditions.

The proposed development is appropriately located within the B4 Mixed Use zone under the relevant provisions of the CLEP 2021, however variations in relation to the height of building under the CLEP 2021 is sought.

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

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

 

 

 

1.      Draft Notice of Determination  

2.      Architectural Plans  

3.      Appendix A – Statement Environmental Planning Policy (Industry and Employment) 2021  

4.      Appendix B – Cumberland Local Environmental Plan 2021 (CLEP 2021)  

5.      Clause 4.6 Variation  

6.      Draft Reasons of Approval   

 

Attachment 1

Draft Notice of Determination

 8 March 2023

Attachment 2

Architectural Plans

 8 March 2023

Attachment 3

Appendix A – Statement Environmental Planning Policy (Industry and Employment) 2021

 8 March 2023

Attachment 4

Appendix B – Cumberland Local Environmental Plan 2021 (CLEP 2021)

 8 March 2023

Attachment 5

Clause 4.6 Variation

 8 March 2023

Attachment 6

Draft Reasons of Approval

 8 March 2023

 8 March 2023

 

Item No: LPP007/23

Development Application for 73 Bangor Street, Guildford

Directorate:                                       Environment and Planning

Responsible Officer:                       Executive Manager Development and Building

File Number:                                    DA2022/0338  

 

 

1.      Development Application No. DA2022/0388 was lodged on the 9 August 2022 for the demolition of existing structures, removal of six (6) trees and construction of a four (4) storey co-living housing development comprising of 14 rooms over basement car parking for 4 vehicles pursuant to the State Environmental Planning Policy (Housing) 2021.

2.      The application was publicly notified to occupants and owners of the adjoining properties for a period of 14 days between 25 August 2022 and 8 September 2022. In response, one (1) submission was received.

3.      The subject site is not listed as a heritage item or located within a heritage conservation area in the Cumberland Local Environmental Plan 2021.

4.      The variations are as follows:

 

5.      The application is referred to the Panel as the proposal contravenes the minimum lot size, setbacks and building separation development standards, by more than 10%, under Sections 68 & 69 of the State Environmental Planning Policy (Housing) 2021.

6.      The application is recommended for refusal as provided in the attached schedule.

Subject Site and Surrounding Area

The subject site is legally described as Lots 3 & 4, Section 9 in DP 734, and is commonly known as 73 Bangor Street, Guildford. The site is located on the western side of Bangor Street between Stimson Street to the south and Beauford Street to the north.

The site area has the following dimensions:

-        Northern (side) boundary                          33.53 metres.

-        Eastern (Bangor Street) frontage            13.41 metres.   

-        Western (rear) boundary                           13.41 metres.

-        Southern (side) boundary                         33.53 metres.

The site has an area of 449.6 square metres. The site has a fall of approximately 350mm or 2.6% to the north along the rear boundary and has a slight fall from the rear to the front boundary.

The property is currently occupied by a single-storey fibro building with a detached car parking structure in the rear yard and 6 trees located within the rear portion of the site. The subject site is zoned R4 High Density Residential under the Cumberland Local Environmental Plan 2021.

The surrounding locality is in its early stages of transitioning from low to higher density development, which currently comprises a mix of low density residential dwelling houses, and higher density residential flat buildings such as the 3-storey residential flat building to the north at 67-71 Bangor Street. The subject site is located approximately 710 metres walking distance from the Guildford Railway Station. The location of the site is shown below edged in purple.

Figure 1 – Aerial base map of the site (highlighted in purple) and locale. Source: Council’s IntraMaps

Figure 2 - Aerial view of the site (highlighted) and locale. Source: Nearmap dated 29 November 2022

Figure 3 – View of the existing subject site from Bangor Street looking west. Source: Photo taken 6 December 2022.

Description of the Development

Development Application 2022/0388 is proposing the demolition of existing structures, removal of six (6) trees and construction of a four (4) storey co-living housing development comprising of 14 rooms over basement car parking for 4 vehicles pursuant to the State Environmental Planning Policy (Housing) 2021.

A detailed summary of the proposal is provided below:

Demolition works

-        Demolition of existing single-storey dwelling and rear structures.

Tree Removal

-        Removal of six (6) on-site trees.

Earthworks

-        Associated earthworks to allow construction of a level of basement car park for 4 vehicles.

Basement level 1 (RL 29.20)

·        Vehicular car parking for four (4) car parking spaces including one (1) accessible car parking space, with vehicular access from Bangor Street;

·        Twelve (12) bicycle spaces;

·        Three (3) motorcycle spaces;

·        On-site detention (OSD) basin overhead the southern wall with a head height of 1.9m;

·        Garbage room with bin tug device; and

·        One (1) fire stair and one (1) lift core.

Construction of the 4-storey co-living housing building

Ground level (RL 32.20)

·        Two (2) double occupancy co-living rooms (1 and 2) with ensuite bathroom and kitchenette facilities and a street-facing courtyard to the co-living room 2 to the front;

·        Communal room with manager’s workspace, kitchenette facilities, combined dining/living room and adjoining courtyard;

·        Two (2) bicycle spaces within the communal courtyard along the southern side boundary;

·        Entry lobby with a ramped pathway from Bangor Street and associated letterbox;

·        Double width vehicular crossover with access driveway with a waiting bay and traffic signal/sign; and

·        Two (2) fire stairs and one (1) lift core.

Level 1 (RL 35.20)

·        Three (3) double occupancy co-living rooms (3, 4 and 5) including adaptable co-living room 4 with ensuite bathroom and kitchenette facilities and a street-facing balcony to the front co-living room 5;

·        One (1) single occupancy co-living room (6) with ensuite bathroom and kitchenette facilities and a street-facing balcony; and

·        One (1) fire stair and one (1) lift core.

Level 2 plan (RL 38.20)

·        Three (3) double occupancy co-living rooms (7, 8 and 9) including adaptable co-living room 8 with ensuite bathroom and kitchenette facilities and a street-facing balcony to the front co-living room 9;

·        One (1) single occupancy co-living room (10) with ensuite bathroom and kitchenette facilities and a street-facing balcony; and

·        One (1) fire stair and one (1) lift core.

Level 3 plan (RL 41.20)

·        Three (3) double occupancy co-living rooms (11, 12 and 13) with ensuite bathroom and kitchenette facilities and a street-facing balcony to the front co-living room 13;

·        One (1) single occupancy co-living room (14) with ensuite bathroom and kitchenette facilities and a street-facing balcony; and

·        One (1) fire stair and one (1) lift core.

History

Relevant Site History

On the 20th April 2021, the applicant withdrew Development Application No. 2020/0740 for demolition of existing structures and construction of a four (4) storey boarding house comprising of 20 rooms and a manager’s accommodation development over basement car parking for pursuant to the State Environmental Planning Policy (Affordable Rental Housing) 2007.

On the 9th August 2022, Development Application No. 2022/0388 was lodged with Council which is the subject of this report.

Applicants Supporting Statement

The applicant has provided a Statement of Environmental Effects prepared by BMA Urban Pty Ltd, dated 21st July 2022 and was received by Council on the 9th August 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

Development Engineer

The development application was referred to Council’s Development Engineer for comment who has advised that the development proposal is unsatisfactory with regard to stormwater management, flooding and vehicular access and car parking and therefore cannot be supported.

Waste Services

The development application was referred to Council’s Resource Recovery Officer for comment who has advised that the waste management plan is unsatisfactory and cannot be supported.

Environmental Health Unit

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 Senior 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.

External Referrals

Endeavour Energy

The development application was referred to Endeavour Energy for comment. The development as proposed is satisfactory in terms of electricity connection and therefore can be supported subject to recommended conditions of consent.

Transgrid

The development application was referred to Transgrid who rejected providing assessment given there is no impact to Transgrid’s infrastructure/network.

 

 

 

NSW Police

The development application was referred to the NSW Police – Cumberland Police Area Command for comment who has advised that the development proposal is satisfactory in terms of crime prevention and therefore can be supported subject to recommended conditions of consent.

PLANNING COMMENTS

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

State Environmental Planning Policies

The proposal is affected by the following consolidated State Environmental Planning Policies that came into effect on 1 March 2022.

 

 

Local Environmental Plans

Cumberland Local Environmental Plan 2021 (CLEP 2021)

The provisions of the Cumberland Local Environmental Plan 2021 is applicable to the development proposal. The subject site is zoned R4 High Density Residential under the Cumberland Local Environmental Plan 2021.

It is identified that the development is not consistent with the fifth objective of the R4 High Density Residential zone which reads as:

·        To encourage residential development that maintains the amenity of the surrounding area.

In this regard the built form and suitability of the site does not maintain or enhance the residential amenity of the surrounding area.

(a)     Permissibility:

The proposed development is defined as ‘co-living housing’ which is permissible in the R4 High Density Residential land use zone with consent. The definition of the use is:

co-living housing means a building or place that—

(a)     has at least 6 private rooms, some or all of which may have private kitchen and bathroom facilities, and

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

(c)     has shared facilities, such as a communal living room, bathroom, kitchen or laundry, maintained by a managing agent, who provides management services 24 hours a day,

but does not include backpackers’ accommodation, a boarding house, a group home, hotel or motel accommodation, seniors housing or a serviced apartment.

Note—

Co-living housing is a type of residential accommodation—see the definition of that term in this Dictionary.

A comprehensive assessment of the Cumberland Local Environmental Plan 2021 is contained in Appendix B.

The main provisions of the Cumberland Local Environmental Plan 2021 relevant to the development are prescribed in the table below.

Development Standards that may be varied under Clause 4.6

Other than the minimum lot size for co-living housing which is discussed under a Clause 4.6, the relevant matters to be considered under the State Environmental Planning Policy (Housing) 2021 and the applicable clauses for the proposed development are summarised below.

Communal open spaces

The matter concerning communal open spaces and any Clause 4.6 variation to communal open spaces under Section 68(2)(d) of the State Environmental Planning Policy (Housing) 2021 has not been considered by the applicant. As such, the application is unsatisfactory under Clause 4.6.

Accommodation sizes

The matter concerning accommodation sizes and any Clause 4.6 variation to accommodation sizes under Section 69(1)(a) of the State Environmental Planning Policy (Housing) 2021 has not been considered by the applicant. As such, the application is unsatisfactory under Clause 4.6.

Setbacks

The matter concerning side and rear setbacks and any Clause 4.6 variation to side and rear setbacks under Section 69(2)(a)(ii) of the State Environmental Planning Policy (Housing) 2021 has not been considered by the applicant. As such, the application is unsatisfactory under Clause 4.6.

Building separation

The matter concerning side and rear building separation and any Clause 4.6 variation to side and rear building separation under Section 69(2)(b) of the State Environmental Planning Policy (Housing) 2021 has not been considered by the applicant. As such, the application is unsatisfactory under Clause 4.6.

As identified above, significant concerns are raised and are not addressed by the applicant in relation to the development standards under the State Environmental Planning Policy (Housing) 2021.Furthermore, no written request that seeks to contravene these development standards have been provided by the applicant for Council’s consideration, hence the application is recommended for refusal.

(b)     Clause 4.6 – Exceptions to Development Standards

Minimum lot size for co-living housing

Clause 4.6 of the Cumberland Local Environmental Plan 2021 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.

There are three (3) preconditions which must be satisfied before the application can proceed which are:

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

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

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

These are answered below together with the applicant’s justification.

Clause 4.6(2) of the Cumberland Local Environmental Plan 2021 provides that:

(2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

The minimum lot size for co-living housing development standard is not expressly excluded from the operation of clause 4.6 and accordingly, consent may be granted.

Clause 4.6(3) of the Cumberland Local Environmental Plan 2021 provides that:

(3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

a)   that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

b)   that there are sufficient environmental planning grounds to justify contravening the development standard.

The applicant has submitted a written request to contravene the development standard for minimum lot size for co-living housing under Section 69(1)(b)(ii) of the State Environmental Planning Policy (Housing) 2021 and considers the judgements established by the Land and Environment Court of NSW such as Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 (“Initial Action”), Wehbe v Pittwater Council [2007] NSW LEC 827 and Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7 at [34].

The proposal seeks to contravene the minimum lot size for co-living housing non-discretionary development standards under Section 69(1)(b)(ii) of State Environmental Planning Policy (Housing) 2021.

The proposed site area is 449.6 square metres which equates to a 43.8% variation.

Applicant response: To answer the first two preconditions, the applicant has submitted a variation request of 350.4 square metres to the minimum lot size for co-living housing of 800 square metres. The applicant’s written request states that “ …the SEPP does not include specific objectives for lot size. Notwithstanding this, the underlying objective for the lot size control is to ensure that co-living developments are compatible with the surrounding context and enable greater density without adversely impacting on neighbour amenity.”

The Principles of the State Environmental Planning Policy (Housing) 2021 are as follows:

(a)     enabling the development of diverse housing types, including purpose-built rental housing,

(b)     encouraging the development of housing that will meet the needs of more vulnerable members of the community, including very low to moderate income households, seniors and people with a disability,

(c)     ensuring new housing development provides residents with a reasonable level of amenity,

(d)     promoting the planning and delivery of housing in locations where it will make good use of existing and planned infrastructure and services,

(e)     minimising adverse climate and environmental impacts of new housing development,

(f)      reinforcing the importance of designing housing in a way that reflects and enhances its locality,

(g)     supporting short-term rental accommodation as a home-sharing activity and contributor to local economies, while managing the social and environmental impacts from this use,

(h)     mitigating the loss of existing affordable rental housing.

The applicant’s written request states that the Principles of the State Environmental Planning Policy (Housing) 2021 will operate to support the underlying objectives relevant to this form of development.

In addition, the applicant states the proposal is consistent with the objectives of the R4 Zone, being:

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

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

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

·        To ensure that non-residential land uses are located in a setting that minimises impacts on the amenity of a high density residential environment.

·        To encourage residential development that maintains the amenity of the surrounding area.

Planning comment: As prescribed by Sections 68 and 69 of the State Environmental Planning Policy (Housing) 2021, the proposed development does not:

-        adhere to the minimum room sizes;

-        minimum communal open spaces each with at least 3m dimensions; and

-        provide minimum side and rear building separation or setback requirements for residential flat buildings under the Cumberland Development Control Plan and the Apartment Design Guide.

In addition, there is inadequate sun solar diagrams demonstrating the proposal can achieve the requisite amount of solar access to the communal living room at the ground level.

The proposed development is not consistent with the objective (dot point number 5) of the R4 High Density Residential Zone as the non-compliant built form including the size of the lot cannot maintain a reasonable level of residential amenity with the locality.

The proposed development is not consistent with principles (c), (d) and (e) of the State Environmental Planning Policy (Housing) 2021.

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

Applicant response: The applicant considers strict compliance with the minimum lot size standard as being unreasonable and unnecessary under the principles of the State Environmental Planning Policy (Housing) 2021 as follows:

·        “The underlying objective for the lot size control is to ensure that co-living developments are compatible with the surrounding context and enable greater density without adversely impacting on neighbour amenity. The specific objectives of the development standard as specified in Part 3 (Principles of Policy) of the Housing SEPP 2021 are detailed in the table below. An assessment of the consistency of the proposed development against each of the objectives is also provided.

·        The strict application of the lot size standard would not serve to enable but rather, prevent the redevelopment of the site of this form of development and therefore, limit the extent of purpose-built development provision across the LGA.

·        The redevelopment of the subject site for the purpose of co-living housing will have a positive influence on the community, inclusive of the vulnerable.

·        In order to address this Principle, reference is made to the high level of compliance the proposal achieves with the remaining standards prescribed in Clause 69 1 (a) through to 2 (f) of the Housing SEPP, where applicable.

·        The proposal also displays a high degree of compliance with the non-discretionary standards prescribed in Clause 68, subsections (1) through to (2) (g), where applicable.

·        The subject site is currently well serviced. These services can be readily updated for the purpose of accommodating the proposed development.

·        No adverse climatic or environmental impacts are deemed to arise as a result of the development, outside of what would be generally deemed as acceptable in an R4-High Density Residential Zone.

·        The subject site is located within an R4-High Density Residential Zone. Despite the R4 High Density Residential zoning under Cumberland Local Environmental Plan 2021, the immediately surrounding built form comprises of a diverse range of development typologies ranging from the original detached single storey housing stock to four (4) storey residential flat buildings, albeit of varying architectural styles and ages. The established character of the locality is both mixed and is in transition.”

Planning comment: In this regard, the non-compliance with the minimum lot size is not supported as the variation sought after is excessive and the justification to support contravening the development standard is inadequate.

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

Applicant response: The applicant’s justification on environmental planning grounds is noted as follows:

·        “The site is isolated by way of being located between a residential flat building and recent dual occupancy development. It would not be expected that the dual occupancy/residential flat building would be demolished to make way for co-living development or any other form of housing.

·        No other feasible form of development apart from residential flat building is permissible in the R4 Zone.

·        Diverse housing is in the form of co-living can be provided in an R4 High Density Residential Zone.

·        There are no additional environmental/amenity impacts caused as a result of the variation to the standard. The variation to the standard is not consequential for any other planning matters;

·        The proposal complies with all other relevant development standards relevant to this form of development notwithstanding the lot size shortfall.

·        The subject site is considered to be isolated noting that consolidation with the neighbouring properties to the south was explored but resulted in failed negotiations. The inability to consolidate should not preclude the subject site from being redeveloped in a manner consistent with that anticipated in an R4 high density residential zone.

·        Failing to support the variation would unreasonably preclude the orderly redevelopment of the site in a manner that responds to the zone objectives and land use provision table as prescribed by the R4 High Density Residential Zone. The zone prohibits residential accommodation in the form of dwelling houses and dual occupancies while the Cumberland DCP requires the provision of a site area of 1000 square metres or greater for the purpose of residential flat buildings. The provision of an affordable housing scheme in lieu of a residential flat building on this isolated site is a better community outcome.

·        The strict imposition of the standard would essentially sterilise the land of being redeveloped in a manner encouraged by the R4 land zoning.”

Planning comment: The applicant’s justification is not considered to be well founded. The proposal is not consistent with fifth objective of the R4 High Density Residential land use zone of the Cumberland LEP 2021. The subject site is 449.6 square metres which equates to a variation of 43.8% to the minimum 800 square metre requirement for co-living housing under the State Environmental Planning Policy (Housing) 2021.

Council is not satisfied that the proposed development will be in the public interest, given the extent of the breaches under Sections 68 and 69 of the State Environmental Planning Policy (Housing) 2021.

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

(a)     State Environmental Planning Policy (Sustainable Buildings) 2022

State Environmental Planning Policy (Sustainable Buildings) 2022 sets sustainability standards of buildings across NSW for residential and non-residential development. The Sustainable Buildings SEPP was notified on 29 August 2022 and will come into effect on the 1 October 2023 to allow for the relevant industry to adjust to the new standards. Savings and transitional provisions in accordance with Clause 4.2 of the Sustainable Buildings SEPP will apply to the subject development application or modification application that was made but not finally determined before 1 October 2023.

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

The relevant provisions of Council’s Cumberland Development Control Plan (CDCP) 2021 that apply to co-living housing, are residential flat buildings Part B3, which are discussed below. The development is not considered acceptable from an environmental planning view point. A comprehensive DCP assessment is contained in Appendix C.

The following is provided:

Part B3 Residential Flat Buildings

Section 3.1 Building Envelope

The Cumberland DCP 2021 requires a 3 metre side setback from the side boundary and a 6.7 metre (20% of the site’s length) from the rear boundary.

The proposed 0.9m to 3m side setbacks and the proposed 6 metre rear setback does not comply across all levels. The impacts of these non-compliances create adverse privacy impacts between the subject site and the adjoining residential properties. It is also unclear in the submitted information whether the proposal provides adequate solar access to the occupants of the co-living housing building.

3.2 Basement design

The Cumberland DCP 2021 requires a 1.2 metre setback from the side boundary to allow for planting. The proposal does not allow for opportunities for deep soil planting as the proposed basement walls are located 200mm from the side boundaries which cannot be supported.

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 fails to address the relevant matters arising from the Environmental Planning and Assessment Regulations 2021 in relation to documents required to be submitted to accompany a development application with regards to stormwater drainage detail.

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

All relevant issues have been considered in the assessment of this proposal.

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

The subject site and locality are known to be affected by flooding and overland flow. The design and site constraints together with being an undersized lot for co-living housing are likely to have a significant adverse impact on the surrounding residential properties. Accordingly, it is considered that the development is not suitable in the context of the site and surrounding locality.

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

In accordance with Council’s Notification requirements contained within the Cumberland DCP 2021, the proposal was publicly notified for a period of 14 days between 25 August 2022 and 1 September 2022. One (1) submission was received in respect of the proposal.

The submission is described below.

 

The provisions of the public interest (Section 4.15(1)(e))

The proposal is contrary to the public interest due to the likely environmental impacts of the development, which are considered unacceptable. Matters that have arisen in this assessment would justify the refusal of the application in 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 given that it is recommended for refusal.

Disclosure of Political Donations and Gifts

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

The development application has been assessed in accordance with the relevant requirements of the Environmental Planning and Assessment Act 1979, State Environmental Planning Policy (Resilience and Hazards) 2021, Statement Environmental Planning Policy (Housing) 2021, State Environmental Planning Policy (Transport and Infrastructure) 2021, State Environmental Planning Policy (Biodiversity and Conservation) 2021, State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, Cumberland LEP 2021 and Cumberland DCP 2021 and is unsatisfactory for approval.

The proposal is generally not consistent with the statutory and non-statutory controls applying to the development. Having regard to the assessment of the proposal from a merit perspective, Council is not satisfied that the development has been responsibly designed and provides for acceptable levels of amenity for future residents. The development is not considered to perform adequately in terms of its relationship to its surrounding built and natural environment, particularly having regard to impacts on adjoining properties.

For these reasons, having regard to the relevant matters of consideration under Sections 4.15 of the Environmental Planning and Assessment Act 1979, it is considered that the development is not appropriate for the site and its surrounds. It is recommended that the development be refused.

 

 

1.      Draft Notice of Determination  

2.      Appendix A - State Environmental Planning Policy (Housing) 2021 Assessment  

3.      Appendix B -Cumberland LEP 2021 Assessment  

4.      Appendix C - Cumberland DCP 2021 Assessment  

5.      Clause 4.6 Variation Request  

6.      Architectural, Stormwater and Landscape Plans  

7.      Plan of Management  

8.      Draft Reasons for Refusal   

 

Attachment 1

Draft Notice of Determination

 8 March 2023

Attachment 2

Appendix A - State Environmental Planning Policy (Housing) 2021 Assessment

 8 March 2023

Attachment 3

Appendix B -Cumberland LEP 2021 Assessment

 8 March 2023

Attachment 4

Appendix C - Cumberland DCP 2021 Assessment

 8 March 2023

Attachment 5

Clause 4.6 Variation Request

 8 March 2023

Attachment 6

Architectural, Stormwater and Landscape Plans

 8 March 2023

Attachment 7

Plan of Management

 8 March 2023

Attachment 8

Draft Reasons for Refusal

 8 March 2023