Agenda of Cumberland Local Planning Panel Meeting

Cumberland Local Planning Panel Meeting

11 October 2023

Item No: LPP022/23

Development Application for 95-97 Dahlia Street, Greystanes

Directorate: Environment and Planning

Responsible Officer: Executive Manager Development and Building

Application accepted	15 May 2023
Applicant	CRK Construction Group Pty Ltd
Owner	Mrs N Khoury
Application No.	DA2023/0194
Description of Land	95-97 Dahlia Street GREYSTANES Lot 16 DP 236780, Lot 17 DP 236780
Proposed Development	Amend DA2020/0207 to include alterations and additions to centre-based child care facility to increase number of places from 66 to 84 including revised basement layout, changes to internal and outdoor play areas, provision of additional fire stairs and alteration to floor levels.
Site Area	1,165 square metres
Zoning	R2 Low Density Residential
Disclosure of political donations and gifts	Nil disclosure
Heritage	The subject site is not listed as a heritage item, nor located in a heritage conservation area
Principal Development Standards	Height of Building Permissible: 9m Proposed: 9m Floor Space Ratio Permissible: 0.5:1 Proposed: 0.42:1 (493sqm)
Issues	Parking / child capacity / submissions

Summary:

1. Development Application No. DA2023/0194 was accepted on 15 May 2023 for ‘Extension of Notification until 30 June 2023 - Amending development application for alterations and additions to approved centre-based child care facility to increase no. of places from 66 to 87 including revised basement layout, changes to internal and outdoor play areas, provision of additional fire stairs and alteration to floor levels’.

2. The application was publicly notified to occupants and owners of the adjoining properties for a period of 14 days between 1 June 2023 and 15 June 2023. Following community feedback, Council extended the notification period until 30 June 2023. In response, eleven (11) unique submissions were received.

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

4. The variations are as follows:

Control

Requirement

Approved

Proposed

% Variation

Cumberland Development Control Plan at Part G3 clause 4.3, C2

Basement parking shall be located within the building footprint.

Entire western wall of basement extends beyond footprint of the building at ground level.

100%

Child Care Planning Guideline at part 3.8, C30

Onsite parking is required at the rate of 1 space per 4 children.

At least 20 spaces is required to accommodate 80 children.

19 visitor spaces and 6 staff spaces to accommodate 66 children.

15 visitor parking spaces and 6 staff spaces to accommodate 84 children (Reduced parking and child capacity figures recommended by Council).

29%

5. The application is recommended for Approval subject to the deletion of one (1) onsite parking space (for reasons detailed in the ‘Internal Referrals’ section of this report), a reduction in the child placement numbers from 87 to 84 (in response to the recommended deletion of a parking space) and the conditions as recommended in the Council’s assessment report.

Report:

Subject Site and Surrounding Area

The subject site comprises Lots 16 and 17 in DP 236780 and has a street address of 95-97 Dahlia Street, Greystanes. Under Cumberland Local Environmental Plan 2021 the site is zoned R2 Low Density Residential. The site is generally rectangular in shape and is situated on a corner with a primary frontage of 35.41m to Dahlia Street, a secondary street frontage to Alpha Road of 31.905m, a splay of 3.84m and a total combined site area of 1,165 square metres. There is a gentle and consistent fall from the western to the eastern boundary of the site. The north eastern part of the site is impacted by a low and medium flood risk.

Demolition of structures on site in accordance with development application DA2020/0207 has occurred and both subject sites are currently vacant.

Figure 1 – Locality Plan of subject site

Figure 2 – Aerial view of subject site

Figure 3 – Street views of subject site

Description of the Development

Council has received a development application for an ‘amending DA’. The application seeks to amend DA2020/0207 to include alterations and additions to an approved centre-based child care facility to facilitate an increase in child placement numbers from 66 to 87, with staff increasing from 11 to 13. Development at each floor level is described in detail as follows:

Basement

The extent of the basement footprint is modified to accommodate changes to the layout and the provision of additional parking spaces. Specifically, the design changes include the following:

- The layout and extent of the basement level is modified to accommodate a reduction in parking spaces from 25 to 22 (15 visitor and 7 staff spaces).

- A new fire stair, a new main switchboard room and new services room is proposed.

- The size and placement of the bin room, store room and lift core is altered.

- One store room and the laundry room is deleted.

- The transitions and grades of the basement ramp is modified.

- The finished floor level is modified at various points ranging from RL40.83 to RL41.5.

Ground floor

The layout of the ground floor remains largely consistent with the current approval which includes three indoor child play areas, associated amenities and an office. Minor changes to the extent of rooms are proposed which includes the following:

- The size of the 0-2 child play area has been reduced and the configuration of the associated cot room is altered to accommodate the introduction of two store rooms which are accessed from the outdoor play area. A long and narrow storeroom previously located along the eastern facade has been deleted.

- The breakdown of playrooms is now proposed at 12 x 0-2 year olds (down from 16), 25 x 2-3 year olds (up from 20) and 30 x 3-5 year olds.

- The finished floor level is raised from RL44.7 to RL44.9.

First floor

Design changes to the first floor include internal layout changes and the addition of a new indoor and outdoor child play area for 3-5 year old children with floor areas of 70sqm and 140sqm respectively. Specifically, the changes include the following:

- The size and placement of the meeting room, kitchen, accessible toilet and staff room is modified.

- The Dahlia Street facing balcony is reduced in size.

- The office is removed, and a laundry room is added.

- A new fire stair, bathroom and outdoor store room is added to the western side of the building.

- The finished floor level is raised from RL47.6 to RL47.8.

Other changes

- There is an increase to the overall building height from 7.86m to 8.16m due to an increase in the height of the lift core of the building from RL52.20 to RL52.50.

- Amended landscape plans have been submitted showing minor changes to the extent of landscaping and built form in the rear setback area.

Note: In consideration of the current approval (DA2020/0207), which approved six (6) staff parking spaces in a tandem arrangement, and noting the Childcare Planning Guideline does not permit dedicated staff parking (for sites located in excess of 400m of a metropolitan train station), Council considers it appropriate to delete a parking space (parking space ‘16’). This will ensure consistency with the number of designated staff tandem spaces approved by DA2020/0207. The approved, proposed and recommended parking provision is tabulated below.

Approved

Proposed

Council recommended

19 x visitor

6 x staff (tandem)

15 x visitor

7 x staff (tandem)

15 x visitor

6 x staff (tandem)

As a consequence, a reduction in child placement numbers from 87 to 84 is recommended to be conditioned to ensure compliance with the relevant parking requirement (1 space per 4 children under the Childcare Planning Guideline).

HISTORY

PL2018/71/1 – ‘Consolidation of two lots. Demolition of existing structures and construction of a two storey child care facility comprising a total of 90 child care places with 30 car parking spaces within a basement level’, issued on 21 January 2019.

DA2020/0207 – ‘Demolition of existing structures and construction of a two storey 66 place centre-based child care facility over basement car parking’, Deferred Commencement issued by Cumberland Local Planning Panel (CLPP) on 9 August 2020.

On 15 March 2021, operational consent issued for DA2020/0207.

MOD2021/0478 – ‘Section 4.55(2) modification application for alterations and additions to approved child care centre to increase no of places from 66 to 87 including revised basement layout, changes to internal and outdoor play areas, provision of additional fire stairs and alteration to floor levels’, was refused by the CLPP on 16 November 2022.

The application was refused as the applicant failed to satisfy the Panel that the proposed development as modified will be substantially the same, notwithstanding the land use, as modified, would remain unchanged. Due to the extent of change proposed including the quantum increase in the number of children numbers, the introduction of new and extensive elevated outdoor play areas at first floor level and the decrease in setbacks for basement level car parking, the Panel has formed the opinion that the development application as modified is not substantially the same development as the development for which consent was originally granted, pursuant to Section 4.55(2)(a) of the Environmental Planning and Assessment Act 1979.

On 27 June 2023, a Class 1 Application was filed with the Land and Environment Court in relation to the deemed refusal of DA2023/0194.

Applicants Supporting Statement

The applicant has provided a Statement of Environmental Effects prepared by Think Planners dated 3 December 2022 and was received by Council on 6 April 2023 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 contact with the applicant for the development.

Internal Referrals

Development Engineer

The development application was referred to Council’s Development Engineer for comment who has advised that proposed parking space ‘16’ in the basement level is not supported for the following reasons:

- The Childcare planning guideline only permits tandem staff spaces for child care centres located within 400m of a metropolitan train station. The subject site is not located within 400m of a metropolitan train station and therefore this requirement does not apply.

- Six (6) tandem staff spaces are currently approved to serve the development under DA2020/0207. The DA seeks approval to add a seventh tandem staff space. It is considered fair and reasonable to permit no more than six (6) tandem staff spaces in acknowledgement of the abovementioned control and to ensure consistency with the currently approved development on the site.

- The provision of tandem spaces is considered impractical as access to rearward spaces would be blocked if the associated front space is occupied.

The deletion of parking space ‘16’ from the basement level is therefore recommended to ensure the impracticalities associated with the provision of tandem parking is not made any worse by the subject application and is considered with regard to what has been approved on the site. This will result in a decrease in the number of onsite parking spaces from 22 to 21 which will require a reduction in the maximum child capacity of the centre from 87 to 84 (to comply with the 1 space per 4 children requirement under the Childcare Planning Guideline).

The above noted changes to parking provision and child capacity is recommended as a condition of consent should the development be approved.

Environment and Health

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

Waste Management

The development application was referred to Council’s Waste Management Officer for comment who has advised that the waste management plan needs to document a viable operational plan that is safe and effective for the future operators of the site that addresses how bins will be moved from the basement to the kerbside without undue risk to children, staff and visitors. A condition is recommended to be imposed to require an addendum to the approved waste management plan to be submitted to Council or the principal certifier prior to issue of the Construction Certificate that requires the abovementioned matter to be addressed.

External Referrals

Endeavour Energy

The subject development proposes a new fire stair that appears to be located within 5m from the overhead power lines that extend across the Alpha Road frontage of the site. As such, the application was referred to Endeavour Energy for comment in accordance with clause 2.48 (2)(a) of State Environmental Planning Policy (Transport and Infrastructure) 2021 which requires written notice to be given to the respective electricity supply authority.

Endeavour Energy has raised no objection to the development subject to recommendations and comments provided for the previous approval, DA2022/0207. It is acknowledged that the recommendations and comments from Endeavour Energy are required to be complied with by condition ‘5’ of DA2020/0207 which will remain valid should this amending development application be approved.

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 (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 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.

Matter for Consideration	Yes/No
Does the application involve re-development of the site or a change of land use?	Yes No
In the development going to be used for a sensitive land use (e.g., residential, educational, recreational, childcare or hospital)?	Yes No
Does information available to you indicate that an activity listed below has ever been approved, or occurred at the site? acid/alkali plant and formulation, agricultural/horticultural activities, airports, asbestos production and disposal, chemicals manufacture and formulation, defence works, drum re-conditioning works, dry cleaning establishments, electrical manufacturing (transformers), electroplating and heat treatment premises, engine works, explosive industry, gas works, iron and steel works, landfill sites, metal treatment, mining and extractive industries, oil production and storage, paint formulation and manufacture, pesticide manufacture and formulation, power stations, railway yards, scrap yards, service stations, sheep and cattle dips, smelting and refining, tanning and associated trades, waste storage and treatment, wood preservation	Yes No
Is the site listed on Council’s Contaminated Land database?	Yes No
Is the site subject to EPA clean-up order or other EPA restrictions?	Yes No
Has the site been the subject of known pollution incidents or illegal dumping?	Yes No
Does the site adjoin any contaminated land/previously contaminated land?	Yes No
Has the appropriate level of investigation been carried out in respect of contamination matters for Council to be satisfied that the site is suitable to accommodate the proposed development or can be made suitable to accommodate the proposed development?	Yes No
Details of contamination investigations carried out at the site: A Preliminary Site Investigation by Geotechnical Consultants Australia, Report No. E2061-1, dated 4 May 2020 was submitted with the approved development application, DA2020/0207. A condition of consent was imposed as part of this approval to require compliance with the recommendations of the report to demonstrated. The proposed DA does not alter the conclusions and recommendations of the previously considered site investigation report and on this basis, the site is considered suitable to accommodate the proposed development.

(b) 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 Development likely to affect an electricity transmission or distribution network.

The proposal includes development that is carried out within 5 metres of an overhead electricity power line. As such, the Consent Authority is required to give written notice to an electricity supply authority. As noted in the External Referrals section of this report, the development was referred to Endeavour Energy who raised no objection to the development.

Chapter 3 – Education Establishments and Child Care Facilities

The proposed child care facility is subject to the SEPP provisions.

Clause 3.23 Centre-based child care facility-matters of consideration by consent authorities

The Child Care Planning Guideline has been considered in the assessment of the development which is deemed to be generally compliant subject to conditions.

Clause 3.25 Centre-based child care facility-floor space ratio (FSR)

Subclause (1) specifies that development for the purpose of a centre-based child care centre in an R2 Low Density Residential zone shall not exceed 0.5:1. The proposed alterations and additions will result in an increase in gross floor area of the development to 501.43sqm, an FSR of 0.43:1.

Clause 3.26 Centre-based child care facility- non-discretionary development standards

Subclause (2)(b) specifies that unencumbered indoor and outdoor child play area must comply with provisions 107 and 108 respectively of the Education and Care Services Regulations. The proposed development is compliant with these provisions.

(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 as no vegetation or tree removal is proposed.

Chapter 6 – Sydney Harbour Catchment

The subject site is identified as being located within the area affected by the catchment. 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 SEPP 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. It is noted that the development achieves compliance with the key statutory requirements of the CLEP and the objectives of the R2 Low Density Residential zone.

(a) Permissibility:

The proposed development relates to alterations and additions to an approved “centre-based child care facility” which is permissible in the R2 Low Density Residential zone with consent.

centre-based childcare facility means—

(a) a building or place used for the education and care of children that provides any one or more of the following—

i. long day care,

ii. occasional childcare,

iii. out-of-school-hours care (including vacation care),

iv. preschool care, or

(b) an approved family day care venue (within the meaning of the Children (Education and Care Services) National Law (NSW)),

Note— An approved family day care venue is a place, other than a residence, where an approved family day care service (within the meaning of the Children (Education and Care Services) National Law (NSW)) is provided.

The relevant matters to be considered under CLEP and the applicable clauses for the proposed development are summarised below. A comprehensive CLEP assessment is contained in Attachment 5.

Figure 4 – Cumberland LEP 2021 Compliance Table

DEVELOPMENT STANDARD	COMPLIANCE	DISCUSSION
4.3 Height of Buildings max. 9m	Yes	As a result of the proposed alterations and additions the highest point of the building is 8.16m.
4.4 Floor Space Ratio No FSR control applies.	N/A	Compliance with an FSR of 0.5:1 is required by clause 4.4(2) of State Environmental Planning Policy (Transport and Infrastructure) 2021. Site area = 1,165sqm Proposed Floor Space Ratio (FSR) = 0.43:1 (501.43sqm). Refer to ‘State Environmental Planning Policies’ section of this report for a detailed discussion of this matter.
5.21 Flood planning	Yes	Council’s Engineer has assessed the development and is satisfied that the flood related conditions of consent imposed by the related development application (DA2020/0207) are sufficient to address the flooding matters on the site.

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

(a) Draft State Environmental Planning Policy (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 came into effect on 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 2022 will apply to the subject development application that was made but not finally determined before 1 October 2023.

This is not applicable to this application.

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. The development complies with the relevant provisions of the CDCP at Part E1, G3, G4, G7 and G8 with the exception of the control below which is considered to be acceptable on merit.

Part G3, clause 3 – Parking rate

The Child care planning guideline specifies the following parking rate that applies to the development:

- 1 space per 4 children (for sites not within 400m of a metro train station)

Comment:

Due to the deletion of parking space ‘16’, the development will provide a total of 21 parking spaces (consisting of 15 visitor and 6 staff spaces). Based on the resulting decrease in child placement numbers (from 87 to 84), there will be a non-compliance in the provision of visitor parking spaces amounting to 6 spaces or 29%. This non-compliance is considered to be acceptable on merit noting DA2020/0207 approved designated staff spaces in the basement which was a requirement of the planning instrument in force at the time being Holroyd Development Control Plan 2013. Given that the subject application is an amending DA, it is considered fair and reasonable for the same number and arrangement of tandem visitor/staff spaces to remain to maintain consistency with what was approved under DA2020/0207. On this basis, the proposed retention of the six (6) visitor spaces adjacent to the southern wall of the basement (identified as spaces ‘17’ to ‘22’) is considered to be appropriate in this instance. The deletion of parking space ‘16’ is therefore recommended as a condition of consent.

Part G3, clause 4.3, C2 - Basement design

C2 requires basement parking to be located within the building footprint above.

Comment: The subject DA proposes minor changes to the extent of the basement to accommodate changes to the parking layout and the provision of a new fire stair. The extent of the basement footprint is modified with respect to the western side boundary which is reduced from 2.38m to approximately 1.3m over half of the basement depth, the remaining length differs less at approximately 1.9m. The non-compliance is considered acceptable in this instance for the following reasons:

- The reduction to the western setback is primarily the result of adding a fire egress stair.

- It is acknowledged that the entire western wall of the basement approved under DA2020/0207 extends beyond the footprint of the building above and the subject development proposes the same.

- Compliance with the intent of the control is maintained, that is to provide safe, well designed, and functional basement parking within buildings.

The changes noted above are considered minor, will not detract from the amenity of surrounding properties and will maintain compliance with the intent of the control. On this basis, the non-compliance is considered to be acceptable from a merit perspective.

A comprehensive assessment and compliance table is contained in Attachment 6.

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))

Advertised (Website)

Mail

Sign

Not Required

In accordance with Council’s Notification requirements contained within the CDCP, the proposal was publicly notified for a period of 14 days between 1 June 2023 and 15 June 2023. Following community feedback, Council extended the notification period until 30 June 2023. The notification generated eleven (11) unique submissions in respect of the proposal with none disclosing a political donation or gift. The issues raised in the public submissions are summarised and commented on as follows:

Figure 5 – Submissions summary table

Issue	Planner’s Comment
Proliferation of child care centres in the locality	Clause 3.26 of State Environmental Planning Policy (Transport and Infrastructure) 2021 does not preclude the establishment of a centre-based child care centre due to its proximity to other centres.
Traffic congestion	A traffic report was submitted in support of the proposed increase in child capacity and staff. concluding that there is sufficient onsite parking to accommodate the centre and the traffic generating capability of the development will not result in any measurable impact on the efficiency of the surrounding road network. Council’s Engineer has assessed the development in this regard and has raised no objection.
Lack of on-street parking	Sufficient onsite parking will be provided to accommodate the recommended child placement numbers as discussed in the ‘External Referrals’ section of this report. Cars associated with the centre are expected to use the onsite parking provided at basement level and not on the street.
Noise impacts	An acoustic report and plan of management has been submitted that recommends acoustic measures and specific operational procedures to reduce noise impacts to the surrounding properties. Council’s Environmental Health Unit has reviewed the documentation considers that the resulting amenity impacts are not unreasonable subject to implementing the recommended acoustic measures. The development is not considered to result in an unreasonable noise impact to surrounding properties subject to implementation of the recommended noise measures and carrying out of the procedures in the plan of management. Compliance will be enforced by way of conditions of consent should the development be approved.
Safety concerns due to busy street	The development is not considered to result in an unacceptable level of safety for children and residents of the area noting children are to be dropped off in the basement level of the building from which direct internal access to the centre is provided.
Reduce property values	This is not a matter of consideration under Section 4.15 of the Environmental Planning and Assessment Act 1979.
Flood impacts of the development	Council’s Engineer has assessed the proposal with regard to the flood affectation of the property and has raised no objection noting suitable conditions were imposed in the previous DA (DA2020/0207) to ensure flood impacts can be suitably mitigated.
Traffic report dated July 2022 relates to 66 child places, not 87	The submitted traffic report prepared by Stanbury Traffic Planning and dated 22 July 2022 is based on a maximum capacity of 87 children.
Increase in child capacity does not comply with Holroyd Development Control Plan 2013 which limits child capacity to 45.	Holroyd Development Control Plan 2013 does not apply to the development as it is no longer in force.
Hours of operation	The subject application does not seek to alter the hours of operation as approved under DA2020/0207.

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 as approved requires 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 EP&A Act, calculated on the cost of works. A total contribution of $7,747.00 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.

Conclusion:

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, State Environmental Planning Policy (Transport and Infrastructure) 2021, Statement Environmental Planning Policy (Biodiversity and Conservation) 2021, the Childcare Planning Guideline, Cumberland Local Environmental Plan 2021 and Cumberland Development Control Plan 2021 and is considered to be satisfactory for approval subject to conditions.

Report Recommendation:

1. That Development Application No. DA2023/0194 to amend DA2020/0207 to include alterations and additions to centre-based child care facility to increase number of places from 66 to 84 including revised basement layout, changes to internal and outdoor play areas, provision of additional fire stairs and alteration to floor levels on land at 95 Dahlia Street Greystanes be Approved subject to conditions listed in the attached schedule.

2. Persons who have lodged a submission in respect to the application be notified of the determination of the application.

Attachments

1. Draft Notice of Determination

2. Architectural Plans

3. Locality Map

4. Submissions

5. Cumberland Local Environmental Plan 2021 Assessment

6. Cumberland Development Control Plan 2021 Assessment

7. State Environmental Planning Policy (Transport and Infrastructure) 2021
Assessment

8. Child Care Planning Guideline 2021 Assessment

Cumberland Local Planning Panel Meeting

11 October 2023

Item No: LPP023/23

Development Application for 28-32 Queen Street, Auburn

Directorate: Environment and Planning

Responsible Officer: Executive Manager Development and Building

Application accepted	14 November 2022.
Applicant	Urban Link Pty Ltd.
Owner	KYS Properties Pty Limited.
Application No.	DA2022/0629.
Description of Land	Lot 1 in DP 176059; Lot 4 in DP 662697; Lot 2 in DP 375528; Lot 3 in Sec 13 in DP 1389.
Proposed Development	Demolition of existing structures and construction of a part 6, part 7 storey shop top housing development comprising of 1 commercial tenancy on the ground floor and 38 residential apartments above over 3 basement car parking levels.
Site Area	1,437m²
Zoning	E1 Local Centre Zone under the Cumberland Local Environment Plan 2021 (former B4 Mixed Use Zone).
Disclosure of political donations and gifts	Nil disclosure
Heritage	Site not listed as a heritage item within the Cumberland Local Environmental Plan 2021. However, the Auburn Public School located at the corner of Auburn Road and Beatrice Street to the western side of Susan Street is listed as a heritage item within the Cumberland Local Environmental Plan 2021.
Principal Development Standards	Floor Space Ratio Permissible: 3:1 Proposed: 2.58:1 (3,704m²/1,437.6m²) Height of Building Permissible: 27m Proposed: 24.148m
Issues	Deep soil zones. Building separation. Corridor design. Internal storage. Basement setback. Front setback. Driveway setback. Submissions.

Summary:

1. Development Application No. DA2022/0629 was accepted on 14 November 2022 for the demolition of existing structures and construction of a part 6, part 7 storey shop top housing development comprising of one commercial tenancy and 38 residential units over basement car parking.

2. The application was publicly notified to occupants and owners of the adjoining properties for a period of fourteen (14) days between 24 November 2022 and 8 December 2022. In response, a total of five (5) submissions including three (3) individual submissions and two (2) petitions which were sent by different objectors that contain the same content and the same forty-nine (49) signatures.

3. The variations are as follows:

Control	Required	Provided	% variation
Apartment Design Guide. Objective 3B-2 Overshadow onto neighbouring properties	Solar access to living rooms, balconies and private open spaces of neighbours should be considered.	2-10 Queen Street Remove 2 hours solar access to 6 apartments and 1 hour solar access to 3 apartment. 26 Queen Street Remove all solar access to the north facing windows.	100% 100%
Apartment Design Guide. Objective 3E-1 Deep Soil zones	7% of the site area shall be designed to be deep soil zones with a minimum dimension of 3m.	93.327m = 6.492%.	7.259%
Apartment Design Guide. Objective 3F-1 Visual privacy and separation distances.	Setback requirement from building to boundary: Up to 4 storeys: - 6m - habitable rooms. - 3m - non-habitable rooms. 5-8 storeys: - 9m – habitable rooms. - 4.5m – non-habitable rooms.	Ground floor, Level 1 to Level 3 26 Queen St, Auburn. - 4.5m from habitable rooms. - 4.5m from non-habitable rooms. 2-10 Susan St, Auburn. - 3m from habitable rooms. - 3m from non-habitable rooms. Level 4 to Level 5 26 Queen St, Auburn. - 4.5m from habitable rooms. - 4.5m from non-habitable rooms. 2-10 Susan St, Auburn. - 3m from habitable rooms. - 3m from non-habitable rooms. Level 6 26 Queen St, Auburn. - 4.5m from habitable rooms. - 4.5m from non-habitable rooms. 2-10 Susan St, Auburn. - 8.8m from habitable rooms. - 9.5m from non-habitable rooms.	25%. Complies. 50%. Complies. 50%. Complies. 66.67%. 33.33%. 50%. Complies. 2.22%. Complies.
Apartment Design Guide. Objective 4C-1 Floor to ceiling height	For development within mixed used area, a minimum 3.3m floor to ceiling height is promotes to encourage future flexibility of use.	2.7m floor to ceiling on first floor level.	18.18%
Apartment Design Guide. Objective 4F-1 Amenity & service.	Long corridors greater than 12m in length from the lift core should be articulated.	Long straight 22.3m corridor to lift core.	85.83%.
Apartment Design Guide. Objective 4G-1 Storage sizes.	Minimum 10m³ of storage area is require for 3 bedroom apartments.	Apartment L6.03 which is a 3 bedroom apartment will provide a total of 9m³ storage area.	10%
Apartment Design Guide. Objective 4G-1 Storage sizes.	50% of the required storage is to be located within the apartment.	Apartment L6.03 which is a 3 bedroom apartment will provide 4m³ of storage area within the apartment.	20%
Cumberland Development Control Plan. Part C Section 3.6 Control C1 Residential us on ground floor.	Ground floor uses in business zones are to comprise non-residential uses.	Proposed secondary communal open space for the shop top housing on the ground floor.	100%
Cumberland Development Control Plan. Part F2-1 Control C1 Front setback.	Development on 32 Queen Street, Auburn shall provide nil setback from street frontage.	The part of the proposed development on 32 Queen Street provides 3m to 4m setback from street frontage.	300-400%
	Development on 28 and 30 Queen Street, Auburn shall provide 4m to 6m setback from street frontage.	The part of the proposed development on 28 and 30 Queen Street provides 3m to 4m setback from street frontage.	25%
Cumberland Development Control Plan. Part G3 Section 4.3 Control C2 Basement parking footprint.	Basement parking shall be located within the building footprint.	The basement extends beyond the building footprint.	100%

4. The development application is referred to the Panel as the proposal is an apartment building for which State Environmental Planning Policy 65 ‘Design Quality of Residential Apartment Development’ applies.

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

Report:

Subject Site and Surrounding Area

The subject site is legally described as Lot 1 in DP 176059, Lot 4 in DP 662697, Lot 2 in DP 375528 and Lot 3 in Sec 13 in DP 1389 and is known as 28-32 Queen Street, Auburn. The site is located on the south-western side of Queen Street between Marion Street to the east, Beatrice Street to the south and Susan Street to the west. The site comprises of 4 lots in total, forming an irregular shaped configuration with a frontage width of 78.54m to Queen Street. The combined sites have an area of 1,437.00m2.

The site inspection undertaken on 23 November 2022 confirmed a single storey detached dwellings and associated outbuildings are erected on each lot at 30 and 32 Queen Street. A single storey dwelling with health consulting room (dentist) is erected on 28 Queen Street. Each residential lots are serviced with a vehicular access off Queen Street frontage.

The site is situated within the Auburn Town Centre within the E1 Local Centres zoned land. The immediate locality has been the subject of significant redevelopment and a number of low to mid rise residential developments and educational establishments exist within close proximity of the site including:

· 2-10 Susan Street – a part 3 and part 6 storeys residential flat building to the west.

· 3, 5 and 7 Queen Street - 2 storey detached dwelling to the northeast immediate across Queen Street.

· 9 Marion Street – a part 3 and part 4 storey residential flat building to the northeast immediate across Queen Street.

· 26 Queen Street and 11 Marion Street – 2 storey detached dwelling to the south.

· 13 Marion Street – a 4 storey residential flat building to the south at the corner of Marion Street and Beatrice Street.

· 16 Queen Street – a single storey educational establishment to the southwest of the site at the corner of Beatrice Street and Susan Street.

· 12 and 14 Susan Street – single storey detached dwelling to the southwest of the site.

Figure 1 – Locality Plan of subject site

Figure 2 – Aerial view of subject site

Figure 3, 4 & 5 – Street view of subject site

[source: site inspection photo taken on 23 November 2023]

Description of the Development

consolidation, and the construction of a part six storey, part seven storey shop top development comprising of a single commercial premise on the ground floor, and thirty-eight (38) apartments above with three (3) levels of basement car park. The development is described in detail below.

Demolition work

· All detached dwellings (3 dwellings) and all associated outbuildings.

· All vehicular access driveways and crossovers.

· Removal of thirteen (13) trees from the site.

Excavation work

· The site will be excavated to a depth of maximum 10.7m and 3 levels of basement car park. Approximately 10,800m3 of soil will need to be removed to facilitate construction of a basement car parking.

Construction of a basement car park

The basement car park will have adequate room for parking sixty (60) vehicles across 3 levels.

The basement car park incorporates the following:

· Vehicle access from Queen Street and access ramp between the basement levels.

· Room for parking sixty (60) vehicles divided into:

o 43 residential spaces including 9 spaces for people with disabilities.

o 10 residential visitor spaces.

o 7 spaces for the commercial premise including 1 space for people with disabilities.

o 22 bicycle parking bays.

o 4 motorcycle parking bays.

o 38 storage cages.

o 1 lift access.

o 2 access stairs.

o 2 boom gates to separate the commercial parking area, residential visitor parking area and residential parking area.

Ground floor

The ground floor encompasses a large commercial tenancy occupying an area of 277.7m2 with access from Queen Street, waste storage and pick-up area and various services required to support the building including:

· Chair lift platform to provide disabled access and stairs access from street level to the commercial tenancy.

· 2 stairs to access the basement levels.

· A commercial bin storage area.

· A residential bin storage area.

· A bulky waste storage area.

· Loading and unloading area for garbage collection.

· Toilet.

· 2 plant rooms.

· A single lift core with dual openings to provide separate access to the commercial and residential lobby.

· 5,000L rainwater tank.

· Electrical substation towards the south-eastern corner of the site along Queen Street frontage.

· Fire hydrant booster area located in front of the plant room next to the vehicular access ramp facing Queen Street frontage.

There is a ground floor communal open space occupying 248m2 along the southern and part of the western curtilage of the site. There is seating provided to ensure passive use of the communal open space.

First floor and Second floor

Each floor provides seven (7) apartments comprising 2 x 1 bedroom apartments, 4 x 2 bedrooms apartments and 1 x 3 bedrooms apartment. All the apartments are provided with a balcony. All apartments to be serviced by the single lift core, one access stairs and a garbage room to house the garbage chute and recycle bin. All apartments are designed to provide a balcony address to Queen Street frontage with the exception to Apartments 1 and 7. Balconies of Apartment 1 and 7 have incorporated privacy screen and blade wall to side of the balconies to mitigate any overlooking onto to neighbouring properties.

Third floor, Fourth floor and Fifth floor

Each floor provides seven (7) apartments comprising 1 x 1 bedroom apartment, 6 x 2 bedrooms apartments. The configuration of all apartments facing Queen Street are similar to the lower levels and the rear Apartments 1 and 7 have been amended to become 2 x 2 bedrooms apartments. The designs of the balconies are the same as lower levels.

Sixth floor (Rooftop Level)

The sixth floor provides three (3) apartments comprising 1 x 2 bedrooms apartment and 2 x 3 bedrooms apartments. All apartments are designed to provide balconies address to Queen Street frontage. A rooftop communal open space with tables and chairs and a BBQ area to ensure the common area becomes useable space for the residents of the building. The rooftop communal open space is separated from the balcony of Apartment 1 via the use of the solid blade wall for privacy measures. Similar to the lower levels, all apartments and the communal open space will be serviced by the single lift core, one access stairs and a garbage room to house the garbage chute and recycle bin.

Other matters

The building is provided with the following as a whole:

· 7 x 1 bedroom apartments comprising 5 adaptable apartments.

· 27 x 2 bedrooms apartments comprising 4 adaptable apartments.

· 4 x 3 bedrooms apartments.

· 1 x commercial tenancy.

· A floor space ratio of 2.58:1 (3,704m2 gross floor area).

Lot consolidation

The development application includes the consolidation of the four allotments into one allotment.

History

28 Queen St, Auburn

Application No.	Proposal	Determination	Date
PL2017/71	Demolition to existing structures and construction of a new 8 storeys boarding house comprising 35 rooms over basement car park.	Minutes issued.	23/03/2018
PL2021/0045	Demolition to existing structures and construction of a new 8 storeys residential flat building comprising 50 apartments over 2 levels of basement for 54 vehicles.	Minutes issued.	17/06/2021
DA2021/0686	Demolition to existing structures and construction of a new 8 storeys residential flat building comprising 50 apartments over 2 levels of basement car park.	Cancelled.	30/03/2022

30 Queen St, Auburn

Application No.	Proposal	Determination	Date
PL2017/55	Demolition to existing structures and construction of a new 8 storey mixed use development comprising 18 apartments and 1 commercial tenancy over 3 levels of basement car park.	Minutes issued.	18/10/2017
DA2018/121	Demolition to existing structures, tree removal and construction of a new 8 storey mixed use development comprising 41 boarding rooms and 1 commercial tenancy over 2 levels of basement car park.	Withdrawn.	28/08/2018
DA2019/218	Demolition to existing structures and construction of a new 8 storey boarding house comprising 56 double room and manager’s residency with at-graded and basement car park.	Rejected.	24/07/2019
DA2019/338	Class 1 appeal for demolition to existing structures and construction of a new 8 storeys boarding house comprising 57 rooms and manager’s residence over at-graded and basement car park.	Approved by Land and Environment Court.	03/09/2020
PL2021/0045	Demolition to existing structures and construction of a new 8 storey residential flat building comprising 50 apartments over 2 levels of basement car park.	Minutes issued.	17/06/2021
DA2021/0686	Demolition to existing structures and construction of a new 8 storey residential flat building comprising 50 apartments over 2 levels of basement car park.	Cancelled.	30/03/2022

32 Queen St, Auburn

Application No.	Proposal	Determination	Date
PL2021/0045	Demolition to existing structures and construction of a new 8 storey RFB (50) over 2 levels of basement car park	PL issued	17/06/2021
DA2021/0686	Demolition to existing structures and construction of a new 8 storeys RFB (50) over 2 levels of basement car park	Cancelled	30/03/2022

APPLICANTS SUPPORTING STATEMENT

The applicant has provided a Statement of Environmental Effects prepared by Weir Phillips Heritage and Planning dated 8 September 2022 (reference no. P458) and was received by Council on 14 November 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 on 21 August 2023 that the development is generally satisfactory subject to conditions.

Environment and Health

The development application was referred to Council’s Environment and Health Officer for comment who has advised on 25 November 2022 that the development proposal is satisfactory subject to conditions.

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 on 23 January 2023 subject to conditions.

Waste Management

The development application was referred to Council’s Waste Management Officer for comment who has advised on 4 July 2023 that the development proposal is satisfactory subject to conditions.

External Referrals

Ausgrid

The subject site is located within 5m from the overhead power lines which trigger a referral to Ausgrid in accordance with clause 2.48(1)(b)(iii) of the State Environmental Planning Policy (Transport and Infrastructure) 2021. The letter issued by Ausgrid and received by Council on 28 November 2022 confirmed that Ausgrid does not object to the proposed development subject to conditions.

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:

State Environmental Planning Policies (SEPPs)	Relevant Clause(s)	Compliance with Requirements
State Environmental Planning Policy (Biodiversity and Conservation) 2021.	Chapter 2 -Vegetation in non Rural Areas.	The development application includes the removal of 13 trees. The arborist report submitted with the application has been reviewed by Council’s Tree Management Officer who confirmed the proposal does not exceed the biodiversity offsets scheme threshold. Therefore, the proposed vegetation removal is considered acceptable.
	Chapter 6 - Bushland in Urban Areas.	No bushland is being affected by the proposed works sought. Generally, Part 6 will not apply as the site is not zoned as bushland or does not form part of a bushland corridor or any reserve as open space. Note - Chapter 6 concerning bushland in Urban Areas is now repealed and replaced with the new provisions. However, the provisions of the new Chapter 6 do not need to be considered given the timing of the application and savings provisions that are provided.
	Chapter 10 - Sydney Harbour Catchment.	It is determined that given location, a detailed assessment is not required given that there is no direct impact upon the catchment and no direct impact upon watercourses. As such, the development is acceptable under the provisions which has been relabelled to become Chapter 6 – Water Catchments of the Biodiversity and Conservation SEPP 2021 from Monday 21 November 2022.
State Environmental Planning Policy (Resilience and Hazards) 2021.	Chapter 2 - Coastal Management.	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. Part 4.6.	Part 4.6 - Contamination and remediation to be considered in determining development application. Comments A review of Council’s files has revealed that the site has been historically used for residential purposes. A Detailed Site Investigation (DSI) prepared by Raw Earth Environmental dated 18 November 2021 recommended that the site can be made suitable for the proposed development subject to further investigation and Remediation Action Plan. The DSI has been reviewed by Council’s Environmental Health Unit who confirmed all measures recommended in the DSI is acceptable. As such, it is considered that the development application is satisfactory under Part 4.6 of Chapter 4 of the State Policy and the DSI will form part of the approved documents should this development application to be supported by Council.
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.	Section 6 Buildings to which Policy applies.	As defined in the Environmental Planning and Assessment Regulation 2021, the proposed shop top housing is considered as ‘BASIX affected building’. Accordingly, the BASIX Certificate number 123001M_02 prepared by EPS dated 7 September 2022 has been submitted and determined as being acceptable for approval.
State Environmental Planning Policy (Industry and Employment) 2021.	Chapter 3 Advertising and Signage.	No signage is proposed as part of the development application and thus no assessment of signage is required.
State Environmental Planning Policy (Transport and Infrastructure) 2021.	Chapter 2 - Infrastructure.	State Environmental Planning Policy (Transport and Infrastructure) 2021 is relevant to the development application as follows.
	Clause 2.48	Chapter 2 - Infrastructure. Determination of development applications (Subpart (2) - Give written notice to electricity providers and take account of responses received within 21 days. Comment The application has been referred to Ausgrid for comment who raised no objection to the proposed development on 28 November 2022.

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

SEPP 65 applies to the development as the building is 3 storeys or more and contains more than 4 dwellings. A design statement addressing the design quality principles prescribed by SEPP 65 was prepared by the project architect. Integral to SEPP 65 is the Apartment Design Guide (ADG), which sets benchmarks for the appearance, acceptable impacts and residential amenity of the development.

Following a detailed assessment of the proposal against the provisions of SEPP 65 and the ADG, it is considered the proposal is generally compliant with the exception of deep soil zones, building separation, corridor length and storage area.

Figure 6 – ADG Non-compliance Table

Clause	Control	Proposal	Compliance
Objective 3B-2	Solar access to living rooms, balconies and private open spaces of neighbours should be considered.	2-10 Queen Street Remove 2 hours solar access to 6 apartments and 1 hour solar access to 3 apartment. 26 Queen Street Remove all solar access to the north facing windows.	No. No.
Objective 3E-1	7% of the site area shall be designed to be deep soil zones with a minimum dimension of 3m.	93.327m = 6.492%.	No.
Objective 3F-1	Setback requirement from building to boundary: Up to 4 storeys: - 6m - habitable rooms. - 3m - non-habitable rooms. 5-8 storeys: - 9m – habitable rooms. - 4.5m – non-habitable rooms.	Ground floor, L1 to L3 26 Queen St, Auburn. - 4.5m from habitable rooms. 2-10 Susan St, Auburn. - 3m from habitable rooms. L4 to L5 26 Queen St, Auburn. - 4.5m from habitable rooms. 2-10 Susan St, Auburn. - 3m from habitable rooms. - 3m from non-habitable rooms. Level 6 26 Queen St, Auburn. - 4.5m from habitable rooms. 2-10 Susan St, Auburn. - 8.8m from habitable rooms.	No. No. No. No. No. No. No.
Objective 4C-1	For development within mixed used area, a minimum 3.3m floor to ceiling height is promotes to encourage future flexibility of use.	2.7m floor to ceiling on first floor level.	No.
Objective 4F-1	Long corridors greater than 12m in length from the lift core should be articulated.	Long straight 22.3m corridor to lift core.	No.
Objective 4G-1	Minimum 10m³ of storage area is require for 3 bedroom apartments.	Apartment L6.03 which is a 3 bedroom apartment will provide a total of 9m³ storage area.	No.
Objective 4G-1	50% of the required storage is to be located within the apartment.	Apartment L6.03 which is a 3 bedroom apartment will provide 4m³ of storage area within the apartment.	No.

These variations are discussed below:

· Objective 3B-2 Overshadowing of neighbouring properties.

North-western side - 2-10 Susan Street, Auburn.

The existing 3 storeys residential flat building has a total of 12 apartments with balconies/living rooms facing the eastern common boundary with the 32 Queen Street. As shown on the shadow diagram, these apartments currently receiving a maximum 2 hours of sunlight from 9:00am in mid-Winter. From 11:00am onwards, these apartments will be shadowed by their own building.

The review of the shadow diagram and the view from the sun diagrams submitted with the application indicated the proposal will remove the 2 hours solar access from the rear 3 apartments on the lowest 2 levels (total 6 apartments) and maximum 1 hour solar access from another 3 apartments on the top level of this rear 3 storeys residential flat building. This building has a setback of 3m from the common boundary with 32 Queen Street.

It is also noted that an 8 storeys boarding house development was approved by the Land and Environmental Court (LEC No. 2019/388973) on 31 August 2020. This boarding house development is approved with nil setback from the common boundary of 32 Queen Street and the development consent will not lapse until 31 August 2025. A review of Council’s records found no development approval was issued to redevelop the existing single storey cottage at 32 Queen Street, Auburn.

Based on the fact above, it is reasonable to assume that any new development on 32 Queen Street will require variation to side setbacks given the allotment is only 15.02m in width. As such, overshadowing onto the east facing balconies and living area of the rear 3 storeys residential flat building at 2-10 Susan Street is unavoidable given the new development at 32 Queen Street do have a maximum allowable building height up to 27m, a maximum floor space ratio of 3:1 and shall be designed to provide nil front setback from Queen Street as identified in Part F2-1 Auburn Town Centre of the Cumberland DCP 2021.

In fact, the proposed development will deliver a better streetscape and environmental outcome with lesser shadow impact to the existing residential flat building at 2-10 Susan Street. The proposal has been designed to include 32 Queen Street and the portion of the development contains within curtilage of 32 Queen Street is only 6 storeys in height. The proposal has been designed to maintain some solar access to the east facing balconies and living area of the top level apartments and the first apartments on all levels of this rear 3 storeys building.

As such, variation to the shadow impact into the neighbouring properties is considered acceptable.

South-western side – 26 Queen Street, Auburn

26 Queen Street currently occupied by a 2 storey dwelling. With the proposed development, the north-west facing windows of this dwelling will receive no sunlight. However, as shown on the shadow diagram, at least 50% of the rear private open space of this site will receive sunlight from 1:00pm onward. Therefore, the proposal has demonstrated compliance with the solar access control.

· Objective 3E-1 Deep Soil zones.

A variation of 7.259% is identified. However, a variation is permitted where the site is within the Auburn Town Centre area where the site is constrained and basement car park is preferred. The site is situated within a E1 Local Centre zone and the plans are showing a commercial premise situated on the ground floor and a basement car park to support the entire development. Additionally, there are support services for the commercial tenancy such as a loading bay, water closet, substation, and commercial waste storage area. The variation is generally consistent with the approaches adopted by the Apartment Design Guide.

· Objective 3F-1 Visual privacy and separation distances.

Northern elevation – 2-10 Susan Street, Auburn.

The application seeks 2.22% to 66.7% variation from the northern boundary setback which is considered acceptable given the site is heavy constrained by the design of the existing residential flat building to the north and west at 2-10 Susan Street.

The building has been carefully designed to locate the balconies of all front facing residential apartments and address the Queen Street frontage. The balconies for the apartments that orientated to the north and west of the site are also designed to incorporate blade walls and privacy screens up to 1.5m in height along the boundaries to address any potential privacy loss onto the balconies and communal open space to the residential flat building at 2-10 Susan Street.

Although some habitable room windows are required to facing the northern and western side boundaries, the proposal has been designed to ensure those windows relate to the bedrooms only which is a less frequently used habitable rooms and screening devices such as curtains and blinds will be installed.

In addition, privacy screens are also installed to the northern end of the residential access corridor on all levels to minimise overlooking onto the balconies of the neighbouring property.

It is noted that a review of the aerial photo confirmed the proposed 3m setback from the common boundary northern side boundary is similar to the existing residential flat building at 2-10 Susan Street.

Western elevation – 26 Queen Street, Auburn.

A 25% to 50% variation to the development control is noted from the proposal. However, the variation is considered acceptable given the site is constrained and is located with the existing E1 Local Centre zone.

Similar to above, the proposal has been designed so that all balconies orientated to the north and west of the site will incorporate blade walls and privacy screens up to 1.5m in height. In additional, all habitable room windows facing the western side boundaries are bedroom windows where screening devices will be installed to minimise any overlooking onto the private open space to the existing dwelling at 26 Queen Street.

As discussed above, although the proposal will remove solar access from all northern facing windows from the existing dwelling at 26 Queen Street, the proposal has managed to maintain at least 2 hours solar access to the rear private open space of the neighbouring dwelling which complies with the development control.

In this instance, the proposed variation is considered acceptable given the existing building at 26 Queen Street is a 2 storey dwelling which is considered under development within the E1 Local Centre zone. It is also noted that this site will not be isolated from the proposed development given the site can amalgamate with 11 Marion Street to the south to create a reasonably sized allotment (approximately 1,200m2 allotment with 28m street frontage) for a future shop top housing development or the like within the E1 Local Centre zone.

· Objective 4C-1

The residential apartments on Level 1 of the proposed development provides 2.9m floor to ceiling height only which equates to 18.18% variation to the development control. However, the variation is considered acceptable given no commercial land use is proposed on first floor.

· Objective 4F-1 Amenity & service.

The proposal is designed to provide a 22.3m long straight corridor between the apartment entrances to the lift core on all levels of the shop top housing which equates to 85.83% variation to this development control.

The variation is considered acceptable given the irregular shape of the site and the fire stairs is designed to locate in centrally located to minimise the path of travel for the residential. In addition, relocating the lift core and fire stairs will result in major redesign to the service area on the ground floor and non-compliance with BCA requirement.

It is also confirmed the proposal demonstrate compliance with the design criteria of objective 4F-1 where only 7 apartments are designed on each level to be serviced by a single lift core / circulation core.

· Objective 4G-1 Storage sizes.

The 3 bedroom apartment L6.03 on the rooftop level is designed to provide 4m3 of internal storage area within the unit with an additional storage cage within the basement level of 5m3 area which demonstrate a 10% variations to the total storage area required for a 3 bedroom apartments and a 20% variation to the internal storage requirement.

A review of the proposed architectural plan considered that the apartment is reasonably sized to provide an additional 1 cubic metre of internal storage area within the apartment to demonstrate compliance with this development control.

Therefore, variation to this development control is not acceptable and a condition is recommended in the consent issued to ensure L6.03 will provide at least 5m3 of internal storage area within the apartment.

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

Local Environmental Plans

Cumberland Local Environmental Plan 2021

The provision of the Cumberland Local Environmental Plan 2021 (Cumberland LEP) is applicable to the development proposal. It is noted that the development achieves compliance with the key statutory requirements of the Cumberland LEP 2021 and the objectives of the E1 Local Centre zone.

(a) Permissibility

The proposed development is defined as a ‘shop top housing development’ comprising a ‘commercial premise’ on the ground floor and ‘dwellings’ above over basement car park.

“shop top housing means one or more dwellings located above the ground floor of a building, where at least the ground floor is used for commercial premises or health services facilities.

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

Shop top housing is a permitted form of development on the site subject to consent and the basement parking is considered as an ancillary development.

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

Figure 7 – Cumberland LEP 2021 Compliance Table

DEVELOPMENT STANDARD

COMPLIANCE

DISCUSSION

4.3 Height of Buildings

Maximum - 27 metres.

Yes

The building has a maximum height of 24.148m.

4.4 Floor Space Ratio

Maximum - 3.0:1.

Yes

The floor space ratio of the development is 2.58:1 (3,654m²/1,437.6m²).

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

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 2022 was notified on 29 August 2022 and came into effect on Sunday 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 2022 will apply to the subject development application or modification application that was made but not finally determined before 1 October 2023.

This will not be applicable to the development application.

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

The Cumberland Development Control Plan 2021 is relevant to the development proposal.

The development has been assessed using the following chapters:

· Part B3 – Residential Flat Buildings.

· Part C – Development in Business Zones.

· Part F2-1 – Auburn Town Centre.

· Part G3 – Traffic, Parking, Transport and Access (Vehicle).

· Part G4 – Stormwater and Drainage.

· Part G5 – Sustainability, Biodiversity and Environmental Management.

· Part G7 – Tree Management and Landscaping.

· Part G8 – Waste Management.

The development has been assessed all relevant parts of the Cumberland DCP 2021 and the following variations are identified. A comprehensive assessment is contained in Appendix C attached to the report.

Figure 8 – Cumberland DCP 2021 Non-compliance Table.

Clause	Control	Proposed	Complies
Part C Section 3.6 C1	C1. Ground floor uses in business zones are to comprise non-residential uses.	Proposed secondary communal open space for the shop top housing on the ground floor.	No.
Part F2-1 Control C1	C1. Setbacks within the town centre shall be consistent with Figure 2. - Development on 32 Queen Street, Auburn shall provide nil setback from street frontage. - Development on 28 and 30 Queen Street, Auburn shall provide 4-6m setback from street frontage.	The part of the proposed development on 32 Queen Street provides 3-4m setback from street frontage. The part of the proposed development on 28 and 30 Queen Street provides 3-4m setback from street frontage.	No.
Part G3 Section 4.3 C2	C2. Basement parking shall be located within the building footprint.	The basement extends beyond the building footprint.	No.

Part C Section 3.6 Building use

Control C1 of this section of the Cumberland DCP 2021 requires no residential use to be provided on the ground floor of the development within the commercial zones. As shown on the architectural plan, the development proposes a secondary communal open space to the rear of the building. The variation is considered acceptable given no residential apartments on the ground floor level and the communal open space is hidden away from the street frontage and cannot be visible from the street. Therefore, majority of the ground floor of the development will be utilised as commercial use which meets the objective of this control for this E1 Local Centre zone.

Part F2-1 Section 2.1 Setbacks

The subject site is identified with the Auburn Town Centre precinct. Accordingly, any new development on side is required to provide the required front setback as shown in Figure 2 of Section 2.1 of Part F2-1 Auburn Town Centre of the Cumberland DCP 2021, the required setbacks are as follows:

- 32 Queen Street: Nil setback from Queen Street;

- 30 Queen Street: 4-6m setback from Queen Street;

- 28 Queen Street: 4-6m setback from Queen Street.

The objective of this control is:

Objective:

O1 The built edge of development fronting the street contributes to a sense of enclosure, scale and appropriate transition within the town centre.

The proposed development provides 3.7m to 4m setback on the ground level and 3m to 4m setback on the upper levels. This result in a maximum 400% variation to the part of building within the property boundary frontage of 32 Queen Street and 25% variation to the part of the building relating to the property boundary of 28-30 Queen Street.

A variation of 400% in this instance is supported as it relates to the proposed vehicular ramp access to the basement level and to the garbage loading/unloading area on the ground floor and the bedroom of the northern end apartment. Furthermore, supporting this variation allows for onsite collection of waste and garbage trucks entering and exiting in a forward direction.

The 25% variation relates to the shortfall of 1m setback from the balconies of the upper level apartments only.

Despite the variation, the ground floor commercial tenancy and majority of the external building wall provides 4m setback from Queen Street frontage which complies with the setback requirement of this clause.

The subject site is located towards the fridge of the E1 Local Centre zone of the Auburn Town centre and the proposed variation to the front setback will provide for a more efficient use of the site particularly around onsite waste collection, it provides a greatly enhanced visual outlook for Queen Street, provides a built form which is consistent with the desired future character of the Auburn Town Centre.

Part G3 Section 4.3 Basement parking

In accordance with this control, all the basement car parking shall be designed to locate within the building footprint to safe operation of the basement car park. Accordingly, the proposal departs from the control C2 relating to basement setback.

The proposed basement car park has been reviewed by Council’s Development Engineer who raised no objection to the footprint of the basement car is acceptable.

It is understood that the strict compliance to the setback requirement of the basement car park for this site is unreasonable due to the following reasons:

- The subject site is identified within the Auburn Town Centre precinct where shop top housing development is permissible to this E1 Local Centre zone.

- The setback requirements for shop top housing on site and the service area on the ground floor to allow forward in and forward out garbage collection vehicles from the site restricted the footprint of the building.

- Most of the basement walls will setback 1.2m from the side boundaries with the exception to the north-western basement wall to achieve the required turn table for the vehicular access ramp.

- A strict compliance with this numerical control is not achievable on this irregular shaped allotment given the vehicular access ramp will fail to comply with the relevant Australian Standards.

In this regard, the strict compliance to design the basement car park within the building footprint is not necessary and a variation to the control is acceptable.

Conclusion

Irrespective of these departures, it is considered that the proposal performs adequately from an environmental planning viewpoint.

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))

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

Advertised (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 fourteen (14) days between 24 November 2022 and 8 December 2022. The notification generated a total of five (5) submissions including three (3) individual submissions and two (2) petitions which were sent by different objectors that contains the same content and the same forty-nine (49) signatures. The issues raised in the public submissions are summarised and commented on as follows:

Figure 7 – Submissions summary table

Issue	Planner’s Comment
· Lack of car park.	The proposal is not designed to rely on on-street parking. The development provides for adequate off street car parking to support the development.
· Demand of physical play area for children and local residence. · Council should acquisition of these properties for the greater benefit of the local community.	The subject site is not identified as land to be acquired under the Cumberland LEP 2021 or the Cumberland DCP 2021. Therefore, the proposal is a permissible type of development within the E1 Local Centre zoned land. It is also noted that the site is located within 500m distance to Wyatt Park to the southeast, Coronation Park to the south and Auburn Memorial Park to the northeast of the site.
· Block the sunlight on the neighbouring properties.	The subject site is located to the east of the existing residential flat building at 2-10 Susan Street and to the north of the existing detached dwelling at 26 Queen Street. Given the physical location of the site, any development on site will cast overshadow onto the western and southern adjoining properties. Whilst the proposal fails to provide the required building separation from the property boundaries, having considered the location of the site and the constrain of the site being an irregular shaped lot, the proposed development will not result in additional overshadow onto the neighbouring properties. As discussed in the Cumberland LEP 2021 table of this report, the proposal complies with the height of building and FSR development standards that apply to the site and the proposed development is of reasonable scale and similar to other shop top housing development within the E1 Local Centre zone.
· Significant amount of noise impact from future tenants and commercial premises.	The acoustic report prepared by Acoustic Works dared 7 July 2022 is submitted with the application. The report has been reviewed by Council’s EHU officer who confirmed the noise generated from the future development is acceptable subject to the imposition of the recommendations identified in the report. Therefore, a condition will be imposed to ensure all measures recommended in the acoustic report will be imposed accordingly.
· The proposal will create a lot of noise, dirt and dust during construction.	This is noted but it will cease once construction work is complete. Standard conditions for Construction Management Plan, Demolition, Excavation, Construction Noise and Vibration Management Plan and Dust Control will be included in any consent issued for this application. Issues concerning non-compliant construction process are handled through the Principal Certifying Authority or Councils’ Compliance Unit. This is not a reason to warrant refusal for of the development application.
· Traffic congestion from additional apartments and commercial tenancy.	The Traffic Report prepared by Varga Traffic Planning Pty Ltd dated 1 August 2022 submitted in support of the application concludes that the traffic generated by the development will not result in significant traffic impacts to Queen Street and the extended local area. Council’s Development Assessment Engineer has reviewed the Traffic Report and concurs with the findings. It is determined that the locality does have carrying capacity to sustain the expected intensity of use proposed subject to recommended conditions.
· Overlooking and lack of privacy onto the adjoining properties.	The proposed development does not manifest itself in any adverse environmental impacts in terms of loss of privacy or amenity. As discussed earlier in the report, majority of the apartments are designed to provide balconies addressing the Queen Street frontage. For the side facing apartments, blade walls and privacy screens are proposed to mitigate any overlooking onto the adjoining properties.
· Unscrupulous investors will buy new properties and private individual would be the target market for any prospective future sale.	There is no proven evidence regarding to this matter and future investors are not considered matters for consideration under Section 4.15 of the Environmental Planning and Assessment Act 1979.
· Land isolation to 11 Marion Street and 26 Queen Street. · The remaining south adjoining properties along Queen Street are not large enough to accommodate any future developments that can meet the planning and engineer requirements.	The proposal is not considered isolating 11 Marion Street and 26 Queen Street as discussed in report above. These properties have a combined site area of approximately 1,200m² with a street frontage of 28m which is capable to accommodate but not limited to a shop-top housing or development on site.
· Depreciation to commercial values of the southern adjoining properties. · The roundabout and barriers directly in front of 11 Marion Street has potentially impacted the attractiveness of those 2 properties.	Land and property values are not considered matters for consideration under Section 4.15 of the Environmental Planning and Assessment Act 1979. As discussed within the report, the proposed development is considered to be compatible within the locality and as such is considered to be an acceptable type of development.
· The proposed development has negative impact to the existing streetscape which would exist between the monolithic structure associated with the proposed development and the existing residential dwellings.	It is noted that this area is in transition and as such the site immediately to the west is under-developed given the FSR and height controls. Noting that the E1 Local Centre zone extends southward to include properties to the north of Beatrice Street between Marion Street and Harrow Road. It is noted that, residential accommodations including detached dwellings are no longer permissible in the E1 Local Centre zone in accordance with the Cumberland LEP 2021. Accordingly, the proposed shop top housing development is a permissible land use and will meet the objectives of the E1 Local Centre zoning.
· Removal of significant panoramic view corridor onto Olympic Park site, the city and the Gallipoli Mosque.	The subject site is not identified as a view protection corridor and shop top housing with commercial premises is a permissible development within the E1 Local Centre zone. In addition, the scale and height of the proposed development demonstrate compliance with the Cumberland LEP 2021 and Cumberland DCP 2021 controls.
· The proposed basement excavation may result in potential structure damage to the neighbouring property.	Majority of the basement wall will setback 1.2m from the property boundaries with the exception is a small portion or the north-western basement wall. A condition will be imposed requiring that a Dilapidation Report prepared by a suitably qualified engineer be submitted to Council or the Registered Certifier prior to the issue of a Construction Certificate.
· Removal of trees on site and environmental impact to habitat to various birds, ringtail possums and frogs.	The subject site is located within the E1 Local Centre zone and the removal of 13 trees from the site is considered acceptable. The arborist report submitted with the application confirmed none of the trees identified for removal contains significant biodiversity values that requires to be retained. The report has been reviewed by Council’s Tree Management Officer and the findings are concurred.

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

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 7.11 of the Environmental and Planning Assessment Act 1979, calculated based on the type of apartments within the proposed shop top housing development with credits to the existing dwellings on site.

The proposed shop top housing comprising:

- 7 x 1 bedroom apartments;

- 27 x 2 bedrooms apartments;

- 4 x 3 bedrooms apartments; and

- Less 3 x 3 bedrooms dwellings as credits.

In this regard, a total contribution of $565,209.00 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.

Conclusion:

The development application has been assessed in accordance with the relevant requirements of the Environmental Planning and Assessment Act 1979, State Environmental Planning Policy No.65 (Design Quality of Residential Apartment Development), State Environmental Planning Policy (Biodiversity and Conservation) 2021, State Environmental Planning Policy (Resilience and Hazards) 2021, State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, State Environmental Planning Policy (Transport and Infrastructure) 2021, Cumberland LEP 2021 and Cumberland DCP 2021 and is considered to be satisfactory for approval subject to conditions.

The proposed development is appropriately located within the E1 Local Centre zone under the relevant provisions of the Cumberland LEP 2021. The proposal is consistent with all statutory and non-statutory controls applying to the development. Whilst non-compliances with Council’s controls have been discussed in the body of this report. The development is 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, it is considered that the proposal is satisfactory having regard to the matters of consideration under Section 4.15 of the Environmental Planning and Assessment Act 1979, and the development may be approved subject to conditions.

Report Recommendation:

1. That Development Application No. DA2022/0629 for Demolition of existing structures and construction of a part 6, part 7 storey shop top housing development comprising of 1 commercial tenancy and 38 residential units over basement car parking levels on land at 28-32 Queen Street, Auburn NSW 2144 be approval subject to conditions listed in the attached schedule.

2. Persons whom have lodged a submission in respect to the application be notified of the determination of the application.

Attachments

1. Draft Notice of Determination

2. Architectural Plans

3. Landscape Plans

4. Stormwater/Engineering Plans

5. Submissions Received

6. Appendix A - SEPP 65 Assessment

7. Appendix B - ADG Assessment

8. Appendix C - CLEP 2021 Assessment

9. Appendix D - CDCP 2021 Assessment