22 November 2023

An Extraordinary Meeting of Cumberland Local Planning Panel will be held at 11.30am via Electronic Determination on Wednesday, 22 November 2023.

Business as below:

Yours faithfully

Peter J. Fitzgerald

General Manager

ORDER OF BUSINESS

1.         Receipt of Apologies

2.         Declaration of Interest

3.         Address by invited speakers

4.         Reports

          -        Development Applications

          -        Planning Proposals

5.      Closed Session Reports

 

 22 November 2023

CONTENTS

Report No.  Name of Report                                                                                         Page No.

1       Development Applications

ELPP024/23 Development Application - 18 Faulds Road, Guildford West........................ 5

ELPP025/23 Section 8.3 Review - 1 Octavia Street, Toongabbie.................................. 111

ELPP026/23 Development Application - 52 McFarlane Street, 239-245 Merrylands Road, Merrylands......................................................................................................... 227

 22 November 2023

 22 November 2023

 

Item No: ELPP024/23

Development Application - 18 Faulds Road, Guildford West

Directorate:                                       Environment and Planning

Responsible Officer:                       Executive Manager Development and Building   

 

 

1.  Development Application No. DA2023/0480 was accepted on 17 August 2023 for demolition of the existing dwelling and outbuilding, retention of a secondary dwelling and construction of a two storey detached dual occupancy with Torrens title subdivision and the construction of a new secondary dwelling to Lot A.

2.  The application was publicly notified to occupants and owners of the adjoining properties for a period of 14 days between 25 August 2023 and 8 September 2023. In response, 1 submission was received.

3.  There are no heritage items located on, or in the vicinity of the subject site, nor is the site located within a Heritage Conservation Area.

4.  The variations are as follows:

 

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

6.  Approval of the application is recommended subject to the conditions as recommended in the Council’s assessment report.

Subject Site and Surrounding Area

The site is legally defined as Lot 92 DP 10981 and is known as 18 Faulds Road, Guildford. The site has an area of 893.7m2 and a frontage to Faulds Road of 17.54m. The site is relatively flat from the rear to the front (south to north) and has a fall of approximately 0.6m from side to side (east to west).

A site inspection of the premises was carried out on 3 November 2023, and it was confirmed that the site is currently occupied by a single storey dwelling, a secondary dwelling and metal garage. No street trees exist in front of the subject site. The site is identified as flood affected.

The existing development is zoned as R2 Low Density Residential and adjoining development includes a two storey dwelling to the west and a single storey dwelling to the east. The site is located in an established residential area comprising of mainly one and two storey dwellings, and dual occupancy developments.

Figure 1 – Locality Plan of subject site (Source: IntraMaps

Figure 2 – Aerial view of subject site (Source: NearMap)

Figure 3 – Street view of subject site

Figure 4 – Garage to be demolished.

Description of The Development

Council is in receipt of a development application that was accepted on 17 August 2023 for demolition of an existing dwelling and an outbuilding retention of a secondary dwelling and the construction of a two storey detached dual occupancy with Torrens title subdivision and secondary dwelling to Lot A. The proposal is detailed below:

 

Demolition:

·    Existing single storey dwelling, and metal garage

Construction:

Dual Occupancy

Dwelling A:

·    Ground floor: Single garage, porch, lounge laundry, office, ensuite, stairs, water closet, kitchen, family/ dining, and alfresco.

·    First-floor: Master bedrooms with respective balcony, walk in wardrobe, and ensuite, 3 bedrooms with respective built-in wardrobes, bathroom, storage, and stairs.

Dwelling B:

·    Ground floor: Single garage, porch, lounge laundry, office, ensuite, stairs, water closet, kitchen, family/ dining, and alfresco.

·    First-floor: Master bedrooms with respective balcony, walk in wardrobe, and ensuite, 3 bedrooms with respective built-in wardrobes, bathroom, storage, and stairs.

Secondary dwelling in relation to Lot A/ Dwelling A:

Ground floor:

·    Two bedrooms with respective built-in wardrobe, bathroom, laundry, kitchen, and living/dining.

Subdivision:

Torrens title subdivision of the development is sought to create two lots (identified as Lot A and Lot B) as shown in the attached ‘Subdivision Plan’ (Sheet 6 of the architectural plans at Attachment 2).

History

·    TA2018/221/1 was approved on 18 October 2018.

·    CDC2018/5403/1 was issued on 20 November 2018 for the construction of a secondary dwelling with attached patio and garage with detached carport.

·    M2018/5403/2 was issued on 17 July 2019 for to modify a CDC to modify the design of a patio.

Applicants Supporting Statement

The applicant has provided a Statement of Environmental Effects which was received by Council on 17 August 2023 in support of the application.

 

The applicant has also submitted a Clause 4.6 statement prepared by George Nehme from Pivotal Planning dated October 2023 which was received by Council on 17 August 2023 in support of the application. The Variation request is in relation to the minimum lot size for a secondary dwelling under the SEPP (Housing) 2021.

Contact With Relevant Parties

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

Internal Referrals

Development Engineer

The development application alongside with the flood report was referred to Council’s Development Engineer for comment who has advised that the development proposal is satisfactory, subject to conditions of consent.

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:

 

Statement Environmental Planning Policy (Housing) 2021

The application has been submitted under Chapter 3 Part 1 Division 2 of the SEPP (Housing) 2021. It should be noted that the proposal generally complies with the key planning controls contained within the SEPP (Housing) 2021, with the exception of Clause 53(2)(a) which states that for a detached secondary dwelling the development must have a minimum site area of 450m2.

Notwithstanding the variation noted above, the proposed development is considered acceptable from an environmental planning viewpoint and a comprehensive assessment against SEPP (Housing) 2021 and a discussion of the clause 4.6 request is provided below.

Clause 4.6 – Variation to Clause 53(2)(a) - Minimum Site Area

Clause 4.6 allows the consent authority to vary development standards in certain circumstances and provides an appropriate degree of flexibility to achieve better design outcomes. The consent authority may grant the exception as the Secretary’s concurrence can be assumed where clause 4.6 is adopted as per the Department of Planning Circular PS 20-002, dated 05 May 2020.

As previously discussed, the application seeks to vary the minimum site area of 450m2 for a detached secondary dwelling as required by Clause 53(2)(a) of State Environmental Planning Policy (Housing) 2021. The proposed subdivision has a site area of 393.32m2 which exceeds the standard by 56.77m2 equating to a 12.62% variation.

A written request has been submitted to Council in accordance with clause 4.6(3)(a) and (b) of Cumberland LEP 2021 seeking to justify 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 standard.

The applicant has submitted a written request to vary the development standard for Minimum Site Area. Based on various case laws established by the Land and Environment Court of NSW such as  Wehbe v Pittwater Council [2007] NSWLEC 827, Randwick City Council v Micaul Holdings Pty Ltd [2016] NSW LEC 7, Moskovich v Waverley Council [2016] NSWLEC 1015, and Four2five P/L v Ashfield Council [2015] NSWLEC 9, a 3 part assessment framework for a variation request proposed under clause 4.6 has been considered and an assessment of the proposed variance, following the 3 part test is discussed in detail below.

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

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

The objectives of the R2 Low Density Residential zone are as follows:

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

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

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

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

Applicant’s justification:

The proposed development is consistent with the objectives of the R2 zoning as it enables a development that will provide for the housing needs of the community within low-density residential environment. The secondary dwelling has been designed and located to ensure the amenity is maintained inclusive of Private Open Space and deep soil zones. The proposal provides adequate solar access with minimal overshadowing impacts, will not generate additional non-compliance to setbacks and landscaping controls. It complies with majority of CDCP 2021 controls which further establishes consistency with the objectives of the R2 zoning in that the proposed development maintains and does not diminish the existing developed landscaped setting of the surrounding environment.

Planner’s comment:

Council is in agreement with the applicant’s justification that the proposal has been designed to provide housing needs within the community, has adequate essential services and amenities maintained, is consistent with the zone objectives, complies with the permitted use of residential housing, and has the ability to sustain the community’s housing needs.

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

Applicant’s justification:

a)   Enabling this variation would accommodate a diverse range of housing types with the secondary dwelling addition to the site in association with the principal dwelling. The secondary dwelling can be used as low-cost rental housing or be utilised as a separate dwelling to the primary dwelling.

b)   The proposed secondary dwelling can accommodate the needs of the vulnerable people of the society by providing a housing option that accommodates affordable rent.

c)   The proposed secondary dwelling has been designed to enable a suitable level of amenity for future residents, including appropriately sized and located living areas with an area over 16sqm and 2 bedrooms with minimum areas of 8sqm.

d)   The proposed secondary dwelling is located in an area that is well serviced by existing infrastructure and services.

e)   The proposed development is accompanied by a BASIX certificate that demonstrates the appropriate environmental measures have been incorporated in accordance with SEPP BASIX 2004.

f)    The proposed secondary dwelling has been designed to minimise amenity impacts on surrounding residents and is well located a fair distance away from the street well screened by the future dwelling on Lot A. The proposed secondary dwelling does not diminish the character of the locality.

g)   The proposed development enables the secondary dwelling to be used as a short term or long-term rental accommodation option that is affordable.

h)  The proposal does not reduce existing affordable housing and in fact adds to the existing affordable housing stock.

Planner’s comment:

The likely intent of the development standard at clause 53(2)(a) is to ensure overdevelopment does not occur and residents of the subject development and surrounding sites are provided with a satisfactory level of amenity. Council is satisfied that the development adequately achieves these outcomes (with regard to building mass, siting, and amenity requirements) as detailed in the relevant planning instruments in the Attachments to this report. 

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

Applicant’s justification:

The proposed minimum site area variation will not be visually imperceptible when viewed from adjoining properties and the surrounding public domain. The variation is considered to be minor and is only slightly over 10%. The development complies with all other relevant development standard and controls stated in the CLEP 2021 and CDCP 2021 inclusive of height, and the relevant controls of the DCP and the Design Guide including POS, landscaping, site coverage and solar access, hence strict application of the minimum site area standard is not necessary. The development is consistent with principles of the Housing SEPP 2021 and zone objectives as discussed above. Strict compliance with the site area control is considered to be unreasonable and unnecessary in the circumstances as outlined from the Wehbe v Pittwater Council case law. Development will not have adverse environmental, or amenity impacts and will provide a positive outcome with minimal impact on surrounding development.

Planner’s comment:

Council is in agreement with the applicant’s justification. It is considered that the proposal is consistent with the desired low-density character of the area. The proposal provides a height, bulk and scale that is generally consistent with the relevant planning instruments, and the correlation between the building height and density is considered appropriate. As demonstrated in the attached assessment tables the development is compliant with the building mass, and amenity requirements of the relevant planning instruments. If the development were made to comply there would be no significant improvement with respect to the abovementioned characteristics. In this regard, Council considers compliance to be unnecessary in the circumstances of the case.

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

 Applicant’s justification:

There are sufficient environmental planning grounds to support a variation of the development standard, hence the minimum site area requirement should be approached with an element of flexibility. See the following:

·    The development has been designed to minimise impacts where practicable on neighbouring properties and likely future adjoining properties.

·    Strict compliance with the site area standard would result in no material-built form benefits and loss of resident amenity, as the difference between a compliant built form and the one proposed is minimal.

·    There is also a discrepancy between the SEPP and the CDCP 2021, where the minimum site area of the DCP is 380m² for secondary dwellings. There is an inconsistency between the DCP, and the SEPP and it is evident that Councils controls envisaged secondary dwellings on sites smaller than 450m².

 

Planner’s comment:

Council considers that the development will protect the amenity of residents within the development and the adjoining properties subject to conditions of consent to require privacy measures to certain windows (refer to Attachment 6 for discussion of these windows). The bulk and scale of the development is such that surrounding properties will receive sufficient solar amenity.

Council’s controls consider a lot of 380m² to be of suitable size to accommodate a secondary dwelling. This is a specific control contained in the CDCP, Part B, Section 2.21, C7 which states, “The minimum site area for a detached secondary dwelling shall not be less than 380m2.”

Council considers the applicants justification to be well founded and the proposed Lot A to be appropriate in size (393.23m2) to accommodate the proposed development. On this basis, it is considered that there are sufficient environmental planning grounds to vary the standard.

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 that the justification provided is satisfactory and having considered the application on its merit, the exception to the Minimum Site Area development standard is considered acceptable in this instance.

Local Environmental Plans

Cumberland Local Environmental Plan (LEP) 2021

The provision of the LEP is applicable to the development proposal. The development achieves compliance with the key statutory requirements of the LEP and the objectives of the R2 Low Density Residential Zone.

(a)     Permissibility:

The proposed development is defined as a ‘dual occupancy (detached) and ‘secondary dwelling’. It is noted that dual occupancies are permissible in the R2 zone and that secondary dwellings are not under the LEP. State Environmental Planning Policy (Housing) 2021 permits development for the purpose of a secondary dwelling on residential zoned land if development for the purpose of a dwelling house is permissible on the land and overrides the LEP in the event of any inconsistency.

In this regard, forms of development are permissible in the prescribed land use zone in accordance with the LEP and SEPP Housing.

The relevant matters to be considered under Cumberland LEP 2021 and a comprehensive assessment and compliance table is contained in Appendix A.

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

No proposed planning instruments applicable.

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

The Cumberland Development Control Plan 2021 (CDCP) and the Low Rise Housing Diversity Design Guide (the Design Guide) provides guidance for the design and operation of development to achieve the aims and objectives of the Cumberland Local Environmental Plan 2021. A comprehensive assessment and compliance table is contained in Appendix B.

The proposed development complies with the provisions of the CDCP and the Design Guide with the exception of the controls outlined below.

The following highlights a non-compliance with the CDCP and the Design Guide, which relates primarily to the side setbacks and minimum frontage. The variations sought are considered satisfactory on merit in this instance the proposed development departs from the side setback control under Objective 2.1A-3 and minimum frontage control under Objective 2.1G-1 as stated in the Design Guide.

Irrespective of these departures, it is considered that the proposal performs adequately from an environmental planning viewpoint and may be supported as discussed below:

2.1A Building envelope

Side setback

Objective 2.1A-3, Design Criteria 10 of the Guide states that where the development control plan does not contain side setback controls, the following side setbacks apply for sites with lot width at the building line of less than 24m:

Dwelling A

Height of building greater than 4.5m and less than 8.5m: (Building height (7.95m) - 4.5m) divided by 4 +0.9m = 1.76 m

Dwelling B

Height of building greater than 4.5m and less than 8.5m: (Building height (8.1m) - 4.5m) divided by 4 +0.9m = 1.8m

Applying the equation, the minimum required side setback when the building height is greater than 4.5m to 8.5m is 1.76 m for the proposed Dwelling A, and 1.8m m for proposed Dwelling B.

From the building height of 4.5m to 8.5m Dwelling A proposes a side setback of 900mm, resulting in a variation of 0.86m or 48.86% to the eastern boundary; and Dwelling B proposes a side setback of 1.5m, which is a variation of 0.3m or 16.67% to the western boundary. The proposed side setback complies at the ground floor however is non-compliant at the first floor.

Despite the numerical non-compliance, the reduced first floor side setbacks does not deter from the existing streetscape characteristics along Faulds Road, is appropriate in bulk and scale as the design is well articulated along the side boundaries utilising a stepped in wall design, windows, and awning structures, and complies with the relevant amenity requirements as indicated in the CDCP and Design Guide assessment table at Attachment B. Hence, the variation is considered acceptable given the nature of the development.

2.1G Orientation, Siting and Subdivision

Minimum Frontage – Dual Occupancy (detached)

Objective 2.1G-1 of the Guide and the CDCP, Part B2, clause 3.1, C1 states the minimum site frontage for a dual occupancy (detached) is 18m. The site frontage is 17.54m to Faulds Road. A variation of 0.46m or 2.55% is proposed. The development is otherwise compliant with other orientation, sitting and subdivision controls and is considered appropriate in terms of bulk and scale. Existing site frontage to be subdivided is considered to be a minor reduction and proposed front façade will not deter from the existing streetscape characteristics. Furthermore, proposed variation to the minimum frontage will not impact internal configuration as adequate room is provided for fixtures, furnishing and other residential amenities.

The development generally complies with the dwelling separation control, landscaping controls, aligns with the public domain interface, pedestrian and vehicle circulation, other orientation, siting and subdivision patterns within the street, solar access, natural ventilation, dwelling layout, private open spaces, storage, car parking, visual and acoustic privacy, and articulation controls. Hence, under a merit assessment the variation is considered acceptable.

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 Regulation 2021 (EP&A Reg).

In accordance with s7.24 of the Environmental Planning and Assessment Act, 1979 as amended by the Environmental Planning and Assessment Amendment (Housing and Productivity Contribution) Act 2023, the development is subject to the (Housing and Productivity Contribution) Act 2023.

In accordance with Part 2 of Schedule 5 of the Environment Planning and Assessment (Housing and Productivity Contribution) Order 2023 (‘the Order’), the Order does not apply to a development consent granted to a pending development application (Pending DA).

A ‘Pending DA’ as per Schedule 1 of the Order and s16 of the EP&A Reg 2021 is as follows:

a)   a development application that is made, but not determined, before the commencement of this Order, or

b)   a development application that is made and determined before the commencement of this Order, but has not been finally determined, or

c)   an application for a complying development certificate that is made, but not determined, before the commencement of this Order.

As the application was lodged on the 17 August 2023, the Housing Productivity Contribution does not apply.

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 Cumberland Development Control Plan 2021, the proposal was publicly notified for a period of 14 days between 25 August 2023 and 8 September 2023. The notification generated one (1) submission in respect of the proposal. The issues raised in the public submission is summarised and commented on as follows:

Figure 5 – Submission summary table:

Issue

Planner’s Comment

Concerns with the number of additional cars that will be parked along Faulds Road upon completion of the construction.   Requesting consideration for additional on-site parking to be made available via a variation to the proposed plan.

Proposed parking arrangements comply with the relevant parking controls of the CDCP and the Low Rise Housing Diversity Design Guide for Development Applications. Please refer to assessment table with reference to the below headings under Appendix B for a detailed assessment: The Guide: ·    2.1F Pedestrian and Vehicle Circulation ·    2.1N Car and Bicycle Parking Cumberland DCP 2021 ·    Part G3 - Traffic, Parking, Transport & Access (Vehicle)   Accordingly, parking arrangements will retain one (1) on-street parking space as required under the Guide and one (1) covered parking space per primary dwelling.

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 7.11 of the EP&A Act, calculated on the cost of works. A total contribution of $20,000.00 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, State Environmental Planning Policy (Housing) 2021, Cumberland LEP 2021, Cumberland DCP 2021, and the Low Rise Housing Diversity Design Guide for Development Applications and is considered to be satisfactory for approval subject to the conditions of the development consent.

Having regard to the assessment of the proposal from a merit perspective, Council is satisfied that the applicant have provided a sufficient Clause 4.6 variation in relation to the minimum site area.

The proposed development is appropriately located within the R2 – Low Density Residential Zone under the relevant provisions of the Cumberland LEP 2021. Variation to the side setback and minimum frontage controls under the Low Rise Housing Diversity Design Guide and CDCP 2021 are considered acceptable on merit.

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

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

 

Report Recommendation: 1.   That the Clause 4.6 variation request to vary the minimum lot size for a secondary dwelling development standard, pursuant to the State Environmental Planning Policy (Housing) 2021, be supported. 2.   That Development Application No. DA2023/0480 for Demolition of existing dwelling and outbuilding, and retention of secondary dwelling and construction of a two storey detached dual occupancy with Torrens title subdivision and new secondary dwelling to Lot A on land at 18 Faulds Road GUILDFORD WEST NSW  2161 be Approval subject to conditions listed in the attached schedule. 3.   Persons whom have lodged a submission in respect to the application be notified of the determination of the application.

 

1.      Draft Notice of Determination  

2.      Architectural Plans  

3.      Clause 4.6 Variation  

4.      Submission  

5.      Appendix A Cumberland LEP Assessment Table  

6.      Appendix B Cumberland DCP and Low Rise Housing Diversity Design Guide for Development Applications Assessment Table   

 

Attachment 1

Draft Notice of Determination

 22 November 2023

Attachment 2

Architectural Plans

 22 November 2023

Attachment 3

Clause 4.6 Variation

 22 November 2023

Attachment 4

Submission

 22 November 2023

Attachment 5

Appendix A Cumberland LEP Assessment Table

 22 November 2023

Attachment 6

Appendix B Cumberland DCP and Low Rise Housing Diversity Design Guide for Development Applications Assessment Table

 22 November 2023

 22 November 2023

 

Item No: ELPP025/23

Section 8.3 Review - 1 Octavia Street, Toongabbie

Directorate:                                       Environment and Planning

Responsible Officer:                       Executive Manager Development and Building   

 

 

1.  Review Application REV2023/0006 was accepted on the 24 August 2023 being a  Section 8.3 Review of Council’s determination of DA2022/0786 for demolition of existing structures and construction of a four (4) storey shop top housing development comprising of a medical centre, physiotherapy, radiology, pharmacy and four (4) residential units with at-grade and basement car parking.

2.  The application was publicly notified to occupants and owners of the adjoining properties for a period of 14 days between 5 October 2023 and 19 October 2023. In response, no submission was received.

3.  The notable variations are delineated as follows:

 

4.  The application is referred to the Panel as it is a residential flat building development of more than 3 storeys and 4 apartments to which the State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Developments applies. Further, it is noted that Council Staff do not have delegation to determine Review applications previously determined by the CLPP.

5.  The application is recommended for refusal.

Subject Site and Surrounding Are

The subject site is identified as being Lot Z in DP 403715 or 1 Octavia Street Toongabbie. The site occupies an area of 607 square metres. The subject allotment is zoned R4 High Density Residential zone under the Cumberland Local Environmental Plan 2021 (CLEP 2021). The site is a corner lot located between Octavia Street and Toongabbie Road and is regular in shape. The site is currently occupied by a single storey dwelling house with detached outbuildings. The site is located at the edge of the R4 zone bordering to R3 Medium Density Residential zone to the south.

The existing developments adjoining the site include a single storey detached dwelling immediately to the north west at 3 Octavia Street and a recently approved multi storey boarding house (by Land and Environment Court) at 5-7a Octavia Street. There is a 4 storey residential apartment building situated on the adjoining site to the north at 45 to 49 Toongabbie Road. The immediate surrounding area comprises of a mixture of residential and mixed use developments of varying heights and built forms.

Existing approved development on the site includes a development consent issued by Council on the 26 August 2021 being DA 2021/0284 for alterations to an existing dwelling to be used as a single storey medical centre including demolition of rear outbuildings and provision of at-grade parking.

The location of the site is shown below edged in yellow.

Figure 1 – Aerial view of subject site

Figure 2 – Zoning Map of subject site

Photos of the site taken during a site inspection are provided below.

Description of The Development

Council has received a Section 8.3 Review application of Council’s determination of DA2022/0786 for demolition of existing structures and construction of a four (4) storey shop top housing development comprising of a medical centre, physiotherapy, radiology, pharmacy and four (4) residential units with at-grade and basement car parking.

Key features of the development proposal are as follows:

History

Development Application 2021/0284 was approved on the 26 August 2021 under delegated authority for alterations to an existing dwelling to be used as a single storey medical centre including demolition of rear outbuildings and provision of at-grade parking.

A Pre-Lodgement meeting PL2022/0038 was held on the 16 June 2022 for demolition of existing structures and construction of a 5 storey shop top housing development comprising of pharmacy, radiology, medical centre, kiosk, 4 apartments and basement car parking.

Development Application 2022/02786 that is subject to the current review application REV2023/0006 was refused on the 14 June 2023 by the Cumberland Local Planning Panel for demolition of existing structures and construction of a four (4) storey shop top housing development comprising of a medical centre, physiotherapy, radiology, pharmacy and four (4) residential units with at-grade and basement car parking.

The current application was accepted by Council on the 24 August 2023.

A detailed assessment of the application identified significant issues in relation to insufficient lot width, building separation, overall bulk and scale, communal open space, deep soil zone, parking and traffic impacts.

Correspondence was sent to the Applicant on the 20 October 2023 advising that the application could not be supported and inviting its withdrawal. That correspondence also set out Council’s concerns with the application in detail. The issues included site unsuitability, insufficient lot width, non compliance with the Apartment Design Guide, waste, acoustic, parking and stormwater matters.

The applicant elected not to withdraw the application and provided additional information which was considered to be unsatisfactory. The amended plans did not warrant renotification.

As such, the information available is presented to the Panel and the report is recommended for refusal. The grounds for refusal are discussed later in the report.

Applicants Supporting Statement

The applicant has provided a Statement of Environmental Effects prepared by City Planning dated August 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 regular contact with the applicant throughout the assessment process.

Internal Referrals

Development Engineer

The Review application was referred to Council’s Development Engineer for comment who has advised that the development proposal is unsatisfactory due to issues relating to stormwater and flooding, vehicle manoeuvrability, provision of inadequate car parking, and loading/unloading.

 

Environment and Health

The Review application was referred to Council’s Environment and Health Officer for comment who has advised that the development proposal is unsatisfactory regarding the acoustic impacts and insufficient details associated with the commercial use. 

Tree Management Officer

The Review application was referred to Council’s Tree Management Officer for comment who has advised that the development proposal is generally satisfactory with regard to the proposed landscaping subject to conditions, should consent be granted.

Waste Management

The Review application was referred to Council’s Waste Management Officer for comment who has advised that the development proposal is satisfactory regarding the proposed waste management subject to conditions, should consent be granted.

External Referrals

Endeavour Energy

The Review application was referred to Endeavour Energy for comment. As per correspondence of 7 March 2023 it was advised that the development is supportable in terms of electricity connection and sufficient clearance to existing electricity asset, subject to conditions.

PLANNING COMMENTS

ENVIRONMENTAL PLANNING AND ASSESSMENT ACT 1979 (EP&A ACT)

The relevant matters for consideration under the EP&A Act 1979 are:

Grounds For Refusal

The grounds for refusal for the original application are reviewed and addressed below:

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

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

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, Nilesh Munot with registration no. 7917, dated November 2022. Integral to SEPP 65 is the Apartment Design Guide (ADG), which sets benchmarks for the appearance, acceptable impacts and residential amenity of the development.

A comprehensive assessment against the SEPP 65 and Apartment Design Guide (ADG) controls is contained in at Appendix A.

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

Local Environmental Plans

Cumberland Local Environmental Plan (LEP) 2021

The provision of the Cumberland LEP 2021 is applicable to the development proposal and Review application. It is noted that the development achieves compliance with the key statutory requirements of the Cumberland LEP 2021

(a)     Permissibility:

The proposed development is defined as a ‘shop top housing under the provisions of the CLEP 2021. Shop top housing is permitted with consent in the R4 – High Density Residential zone which applies to the land as follows:

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.

While residential flat buildings are permissible with consent within the R4 zone under the CLEP 2021, commercial premises are prohibited.

Refer to earlier discussions under Transport and Infrastructure SEPP in relation to permissibility of pharmacy, radiology/physiology and medical centre above. In this regard, permissibility is established for the medical centre under Clause 2.59 of SEPP Transport and Infrastructure 2021.

The proposed pharmacy, radiology/physiology can be appropriately characterised as an ancillary to the primary use associated with the Medical Centre subject to condition, should the consent be granted. 

The main provisions of the Cumberland LEP 2021 relevant to the development are prescribed in the table below. A comprehensive LEP assessment is contained in Appendix B.

Figure 7 - Cumberland LEP 2021 Compliance Table.

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

The Cumberland Development Control Plan (DCP) 2021 provides guidance for the design and operation of development to achieve the aims and objectives of the Cumberland LEP 2021.

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

A summary of the DCP non-compliances is provided in the following table. 

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

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

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

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

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

Due to the insufficient lot width, the proposal is unable to provide compliant communal open space, deep soil zone, building separation and parking. In this regard, it is considered that the proposal would have an unacceptable adverse impact upon the existing and future built environment.

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

The narrow and non-compliant width of the site results in disproportionate scale of the overall development, internal amenity issues with regard to improper segregation of the commercial and residential uses, visual and acoustic privacy, non compliant parking and vehicle manoeuvrability within the site. In this regard, the site is not considered suitable to support the proposed development.

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 14 days between 5 October 2023 and 19 October 2023. In response Council received no submissions. 

 

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

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

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 Cumberland 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 $35,545.00 would be payable should the Panel support the application.

However, given that the development application is recommended for refusal, the matter of contributions is not explored further.

Housing and Productivity Contribution Act 2023

In accordance with s7.24 of the Environmental Planning and Assessment Act, 1979 as amended by the Environmental Planning and Assessment Amendment (Housing and Productivity Contribution) Act 2023, the development is subject to the (Housing and Productivity Contribution) Act 2023.

In accordance with Part 2 of Schedule 5 of the Environment Planning and Assessment (Housing and Productivity Contribution) Order 2023 (‘the Order’), the Order does not apply to a development consent granted to a pending development application (Pending DA).

A ‘Pending DA’ as per Schedule 1 of the Order and s16 of the EP&A Reg 2021 is as follows:

a) a development application that is made, but not determined, before the commencement of this Order, or

b) a development application that is made and determined before the commencement of this Order, but has not been finally determined, or

c)  an application for a complying development certificate that is made, but not determined, before the commencement of this Order.

As the application was lodged on the 4 August 2023, the HPC provisions do not apply to this application.

Disclosure of Political Donations and Gifts

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

The Review  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 No. 65 - Design Quality of Residential Apartment Development, Apartment Design Guide, 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, State Environmental Planning Policy (Sustainable Buildings) 2022; Cumberland LEP 2021 and the Cumberland DCP 2021. The development is considered as being unsatisfactory for the reasons as discussed within the report.

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 Panel reaffirm its original decision and refuse to grant approval to the S8.3 Review application.

 

Report Recommendation: That Review Application No. 2023/0006 being a Section 8.3 Review of Council’s determination of DA2022/0786 for demolition of existing structures and construction of a four (4) storey shop top housing development comprising of a medical centre, physiotherapy, radiology, pharmacy and four (4) residential units with at-grade and basement car parking on land at 1 Octavia Street Toongabbie  be refused for the reasons listed in the attached schedule.

 

1.      Draft Notice of Determination  

2.      Appendix A - State Environmental Planning Policy No.65 - Design Quality of Residential Apartment Development and Aparment Design Guide Assessment  

3.      Appendix B - Cumberland LEP 2021 Assessment  

4.      Appendix C - Cumberland DCP 2021 Assessment  

5.      Architectural Plans  

6.      Landscape Plans  

7.      Shadow Diagrams  

8.      Original Notice of Determination for DA2022/0786  

9.      Original Architectural Plans for DA2022/0786   

 

Attachment 1

Draft Notice of Determination

 22 November 2023

Attachment 2

Appendix A - State Environmental Planning Policy No.65 - Design Quality of Residential Apartment Development and Aparment Design Guide Assessment

 22 November 2023

Attachment 3

Appendix B - Cumberland LEP 2021 Assessment

 22 November 2023

Attachment 4

Appendix C - Cumberland DCP 2021 Assessment

 22 November 2023

Attachment 5

Architectural Plans

 22 November 2023

Attachment 6

Landscape Plans

 22 November 2023

Attachment 7

Shadow Diagrams

 22 November 2023

Attachment 8

Original Notice of Determination for DA2022/0786

 22 November 2023

Attachment 9

Original Architectural Plans for DA2022/0786

 22 November 2023

 22 November 2023

 

Item No: ELPP026/23

Development Application - 52 McFarlane Street, 239-245 Merrylands Road, Merrylands

Directorate:                                       Environment and Planning

Responsible Officer:                       Executive Manager Development and Building   

 

 

1.  Development Application 2023/0243 was accepted on Tuesday 30 May 2023 for the alterations and additions to the approved mixed use building including an additional 4 storeys in building D and 3 storeys in building E and provide an increase of 73 apartments across the development within Lot 2.

2.  The application was publicly notified to occupants and owners of the adjoining properties for a period of fourteen (14) days between Thursday 8 June 2023 and Thursday 22 June 2023. During the notification period, Council received two objections to the proposed development.

3.  The variations are as follows:

 

4.  The application is referred to the Panel as the proposal is sensitive development being a residential apartment development comprising more than four dwellings and with a height exceeding three storeys.

5.  The application is recommended for approval subject to the conditions as recommended in the Council’s assessment report.

 

Subject Site and Surrounding Area

The subject site comprises a total of three (3) allotments as detailed below:

·    52 McFarlane Street Merrylands (Lot 1 in DP 1271537).

·    239 Merrylands Road Merrylands (Lot 2 in DP 1271537).

·    245 Merrylands Road Merrylands (Lot 3 in DP 1271537).

The entire site maintains an ‘L’ shaped configuration with frontages to McFarlane Street to the north, Merrylands Road to the south and Treves Street to the west. The site area is shown in the table below.

Elements	Site area
Original Site area plus laneway.	12,423.2 square metres.
Site area excluding the laneway and Merrylands Road dedication area.	11,208 square metres.
Subject site being only Lot 2.	4,448 square metres.

In accordance with development consent DA2020/0009, demolition works have been undertaken across much of the site. As identified during site inspections of early September 2023:

·    Construction work on Tower Building A is nearing completion.

·    Construction work on Towers B and C are advanced.

·    A lift core where towers D and E will be is under construction with works progressing.

·    A public open space area to the immediate east facing both McFarlane Road to the north and Merrylands Road to the south has recently been opened.

The site is situated within the Merrylands Town Centre opposite Merrylands Mall which features a large array of shops and services. There is a four storey mixed use development to the west situated on the western side of Treves Street to the west. There are also established walk up residential apartment buildings within the vicinity of Treves Street and Merrylands Road to the west.

There are shops and commercial outlets situated along the southern side of Merrylands Road including a recently constructed mixed use retail / commercial apartment building at 280 Merrylands Road, opposite the site. There are further retail outlets to the east of the site along Merrylands Road.

The site subject of the works is shown below edged in purple while the wider site is edged in red. It is shown that Building D and E are situated within Lot 2.

The plot below shows the split maximum building height limits applying across the site with the site highlighted in red.

The scale of the development is shown within the photos taken during early October 2023.

Description of The Development

Background

The site known as Lot 2 being the subject site was recently the subject of a Planning Proposal (Number PP2021/0001) that amended the maximum building height and floor space ratio provision for the subject site.

This resulted in an increase in the maximum building height of Building D from 55 metres to 64 metres and Building E from 77 metres to 84 metres. The same planning proposal resulted in an increase of floor space ratio for the site from 5.5:1 to 7.0:1. The amendments have now been gazetted.

The approved development has already been supported by the Cumberland Design Excellence Panel as exhibiting design excellence and therefore, the initial approval was entitled to a height bonus of up to 10% under Clause 6.14(5) and a floor space ratio bonus of up to 0.5:1 under Clause 6.14(6) of the Cumberland Local Environmental Plan 2021.

The latest development is also permitted a 10% height bonus and a 0.5:1 floor space ratio bonus subject to achieving design excellence which will provide for a maximum of:

a)   Floor space ratio 7.5:1 across Lot 2.

b)   Maximum building height:

·    Building D - 70.4 metres.

·    Building E - 92.4 metres.

The design excellence certificate was issued for the subject development application on Tuesday 10 October 2023.

Development Application 2023/0243

Development application 2023/0243 is seeking to amend the development approved under Development Consent 2020/0220 by:

·    Introducing 4 additional storeys to Building D.

·    Introducing 3 additional storeys to Building E.

The development application is taking advantage of the Planning Proposal that has permitted an increase in the building height and floor space ratio across Lot 2. It is identified that the common rooftop areas and access provisions are in breach of the new height control and the floor space ratio of the amended development is also in breach of the floor space ratio provisions. Such matters are discussed in detail within the assessment report below.

The current development application is to modify the approved design scheme associated with Buildings D & E to align with the revised floor space ratio and height provisions of the Cumberland Local Environmental Plan 2021

The development application is proposing the following changes to the approved development.

a) Construct 4 additional storeys to Building D and construct 3 additional storeys to Building E. This will result in Towers D and E having 22 and 29 storeys respectively including the lift overrun for each tower.

b) Modify both towers D and E especially above Level 13 of each tower to accommodate 16 additional apartments.

c)  Increase the total number of apartments within the development site being Lot 2 or Buildings D and E from 343 to 416 which is an increase of 73 apartments. The total of 416 apartments is broken down across the entire Buildings D and E as:

·    Studio and 1 bedroom apartments - 176.

·    2 bedroom apartments - 233.

·    3 bedroom apartments - 7.

The net increase of apartments is 16 within the approved development. The total number of new apartments is 73 apartments.

As part of the application:

a)   There are adjustments to the landscaping and common area across Level 1, but the common area is generally retained as per the initial approval granted.

b)   There are changes to the upper facades of Tower in terms of colours and materials to be used for the external facades.

c)   There are no changes proposed to the basement car park resulting from this application.

The crucial elements of the whole development across Lot 2 are outlined within the table below.

History

The history of the entire site is summarised below as follows:

The current development application 2023/0243 was accepted by Council for determination on Tuesday 30 May 2023.

Applicants Supporting Statement

The applicant has provided a Statement of Environmental Effects prepared by Think Planners and dated Sunday 30 April 2023 which has been received 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 had initially advised in writing that a traffic survey is required to verify the number of car parking spaces required to support the development.

Council officers have undertaken this exercise and have determined that there is adequate car parking to support the development throughout the basement car park supporting Buildings D and E. This assessment is at Appendix A and C attached to the report.

Following discussion with the engineer and the satisfactory calculations made, a traffic survey is not required.

Further to the above, the basement supporting Towers D and E provides a total of 392 car parking spaces. The overall development requires:

·    301 residential spaces.

·    83 visitor spaces.

The existing approved development and proposed development combined needs a total of 384 spaces which is a surplus of 8 spaces. As such, there is adequate car parking to support the development.

Stormwater drainage

There are no issues in relation to stormwater drainage and a condition should be provided requiring the stormwater plans to be updated.

Waste Management

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

External Referrals

Cumberland Police Area Command

The development application was referred to the Cumberland Police Area Command. Council received no comment in relation to the development application. As such, it is concluded that the Cumberland Police Area Command has no objection to the additional floors proposed for both towers D and E.

Design Excellence Panel

The development application was referred to the Design Excellence Panel meeting of Tuesday 10 July 2023 in accordance with the Cumberland Design Excellence Panel Policy as the development is occurring within a site earmarked for “Design excellence” and the development requires a design excellence certificate pursuant to Clause 6.14 of the Cumberland Local Environmental Plan 2021.

The Design Excellence Panel has granted a Design Excellence Certificate for the uplift in height and floor space ratio, a copy of which is included into the Appendix for the Panel to consider.

Planning Comments

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

State Environmental Planning Policies

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

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

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

The development generally complies with the relevant provisions. The variations identified are outlined within the table below.

Control	Required	Provided	Yes / No
Part 3J Bicycle and car parking.   Guide to Traffic Generating Developments	Basement Towers D and E only Lot 2.   384 spaces divided into:   301 residential. 83 visitor.	Provided 392 spaces.   382 residential. 10 visitor.	Yes   No for the allocation of visitor spaces.
Part 4D - 2 Maximum habitable room depth to a window.	In open plan layouts (where the living, dining and kitchen are combined) the maximum habitable room depth is 8m from a window.	Room depths reach up to 8.8 metres from a window - Variation is up to 800 mm or 10%.	No
Part 4F Common circulation and spaces	The maximum number of apartments off a circulation core on a single level is eight.	Up to 9.   Variation is 1 or 12.5%.	No

Comments

The variations identified within the above table are considered acceptable as follows.

1 - Part 3J Bicycle and car parking.

There is adequate car parking across the whole of the basement supporting Towers D and E. In this regard, at least 384 car parking spaces are required to support the existing and new development across Lot 2. However, the visitor allocation is deficient by 73 spaces or 88%. This is capable of being addressed via a condition attached to any consent issued.

2 - Part 4D - 2 Maximum habitable room depth to a window.

The variation is 800 mm or 10%. The variation is limited to benchtops and areas where the stove and refrigerator would be located. The variation is the same as that of other approved apartments within the larger building complex and considered acceptable.

 

3 - Part 4F Common circulation and spaces

While a variation of 1 apartment is identified, the new floors and changes to existing upper floors are consistent with those already approved for the lower floors of both towers. It is considered that residential amenity is not adversely impacted by the variation.

Local Environmental Plans

Cumberland Local Environmental Plan 2021

The provision of the Cumberland Local Environmental Plan 2021 is applicable to the development proposal. The development is permitted with consent, but the development does not achieve compliance in relation to building height and floor space ratio. The issues of building height and floor space ratio are described below.

(a) Permissibility:

The proposed development is defined as “Shop top Housing” which is defined as:

“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”.

Shop top housing is permitted with consent within the E2 Commercial Centre zone being that part of the site where the primary building is to be constructed.

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

DEVELOPMENT STANDARD	COMPLIANCE	DISCUSSION
4.3 Height of Buildings   Building D Permissible: 64 metres.   Site benefits from Clause 6.14(6) of CLEP 2021 that may allow for an increase of 10% to 70.4 metres.   Building E Permissible 84 metres.   Site benefits from Clause 6.14(6) of CLEP 2021 that may allow for an increase of 10% to 92.4 metres.	No                 No	74.8 metres.                 97.03 metres.
4.4 Floor Space Ratio   Building D and E Permissible: 7.0:1.   Site benefits from Clause 6.14(6) of CLEP 2021 that may allow for an increase of 0.5:1 subject to design excellence - Maximum 7.5:1.	No	Proposed: 7.85:1.   Based upon the site area for Lot 2 being 4,448 square metres.
4.6 Exceptions to Development Standards	Yes	Refer to detailed assessment below.

(b)     Clause 4.6 - Variation to building height.

Recent changes to the provisions regarding Clause 4.6 Variations will not apply to the current development application because the application was lodged prior to the new provisions coming into effect on Wednesday 1 November 2023.

Clause 4.6 allows the consent authority to vary development standards in certain circumstances and provides an appropriate degree of flexibility to achieve better design outcomes. The consent authority may grant the exception as the Secretary’s concurrence can be assumed where clause 4.6 is adopted as per the Department of Planning Circular PS 20-002, dated 05 May 2020.

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

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

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

Applicant’s justification

Building D complies with the 70.4m maximum building height limit to the roof structure (70.340m) however, the lift over run and structures associated with the roof top communal open space encroaches upon the prescribed height limit (maximum height of 74.8m which equates to a height departure of 4.4m or 6.31%).

Building E complies with the 92.4m maximum building height limit to the roof structure (92.18m), however the lift overrun, and structures associated with the roof top communal open space encroaches upon the prescribed height limit (maximum height of 97.03m which equates to a height departure of 4.63m or 5.01%).

Despite the encroachment to the height control associated with the introduction of the four additional storeys to Building D and 3 storeys to Building E, all habitable floor space are to be contained below the maximum building height line which indicates that the variation is not simply a means of achieving additional development yield on the site, but a site specific design response. In this case, resulting from complying with access including access to the rooftop structure and service requirements needed to service the building.

The objectives of zone are:

·    To strengthen the role of the commercial centre as the centre of business, retail, community and cultural activity.

The proposal continues to provide for an active ground floor to contribute to the role of the Merrylands Town Centre as the centre of business, retail, community and cultural activity and the development will strengthen the role of Merrylands Town Centre given the nature of the proposal.

·    To encourage investment in commercial development that generates employment opportunities and economic growth.

The proposal continues to provide for an active ground floor to contribute to employment generation and economic growth and the extent of residential units will also provide greater patronage of Merrylands Town Centre to further generate economic growth.

·    To encourage development that has a high level of accessibility and amenity, particularly for pedestrians.

The development has a high level of accessibility and amenity with good connectivity elsewhere to Merrylands Town Centre and public transport. The proposal is providing a mixture of compatible uses and for redevelopment in an accessible location with a scheme that exhibits high levels of amenity and accessibility.

·    To enable residential development only if it is consistent with the Council’s strategic planning for residential development in the area.

The development provides residential development consistent with Councils strategic planning for residential development in the area- notably Merrylands Town Centre Precinct which envisages residential development above ground floor commercial development.

·    To ensure that new development provides diverse and active street frontages to attract pedestrian traffic and to contribute to vibrant, diverse and functional streets and public spaces.

The proposal provides for an active ground floor to the primary street frontages to attract pedestrian traffic and contribute to vibrant, diverse and functional streets and public spaces.

The proposal is consistent with the zone objectives as the development ensures that the high density nature of the zone is retained and there is not a significant change to the character of the locality. In addition, the proposed design scheme is a direct response to a successful Planning Proposal increasing the height and FSR control within the subject site to permit additional storeys to Buildings D & E, noting that the development will continue to align with the principles of urban consolidation which seek to ensure that efficient use of community infrastructure is achieved at a strategic location.

The proposed development seeks to continue to utilise the land in accordance with the zoning and take advantage of its location within Merrylands Town Centre, public transport and recreational opportunities.

Planning comment

The development overall is a result of a successful Planning Proposal. It is identified that the overall development is consistent with the Final Urban Design Study that accompanied the Planning Proposal. In particular:

·    All the objectives are complied with.

·    The site is ideally located adjacent to a major shopping complex and close to public transport links.

·    The site is a key redevelopment site and forms part of a revitalization of the Merrylands Town Centre.

·    The variation does not pass through habitable floor area accounting for the 10% height bonus applicable for the site.

The development is supported under the first heading.

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

Applicant’s justification:

The objectives of the building height development standard are:

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

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

c)   to minimise the visual impact of development,

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

The proposal remains consistent with the objectives based on the following:

·    The development proposal is consistent with a planning proposal that was endorsed for the development site. The extent of breach is limited to communal open space areas- the extent size and location of which is consistent with the prior DA for the site. That is to say, the extent of breach is largely ‘as approved’ as the prior DA for the site approved the communal areas (and access to those communal areas) above the height limit.

·    In relation to objective (b), the height of the development despite the height breach, is compatible with the character, and specifically the desired future character, of the locality noting the building is compliant to the habitable areas of the development- i.e., the residential floors are below the height limit. This height, to the residential floors, also aligns with the planning proposal. The area of the breach is limited to the communal area and access to those areas and are not ‘read’ in terms of character given their recessed location and the lightweight nature of these elements. Of relevance to this objective is that the DEP have also issued a further Design Excellence Certificate was issued dated 10 October 2023 in relation to this scheme- meaning design excellence is achieved with this scheme as proposed and the proposal satisfies Clause 6.14 Design Excellence of the LEP and the relevant maters in that clause.

·    The non-compliance is minor in nature with the majority of the building being compliant with the building height control and with the structure associated with the rooftop communal open space and service overruns recessed, its impact to the streetscape is negligible as it will be visually unnoticeable when viewed from the street level and therefore satisfies objective (c).

·    The departure will not unreasonably impact on the solar access of adjoining properties or the public areas in the vicinity of the site which satisfies objective (d).

·    The extent of the height breach has no impact on privacy given the ADG compliant setbacks and separation proposed to the tower.

Planner’s comment:

It is identified that:

·    The development proposal is consistent with the approved planning proposal.

·    The Design Excellence Panel has granted a Design Excellence Certificate dated Tuesday 10 October 2023 for the development.

·    The overall variation is limited to the lift overruns and support services and not passing through habitable floor space.

·    The degree of shadowing is consistent with the final Urban Design Study and thus the shadowing is generally consistent with that already modelled for the uplift.

·    The physical bulk, height and scale of the development is acceptable and supported.

·    The proposed variation will not lead to view loss or interrupt views to and from the site.

·    The level of privacy is determined as being satisfactory and street setbacks are not altered.

It is considered reasonable to support the development under the heading.

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

 

 

Applicant’s justification:

As outlined, the proposal remains consistent with the underlying objectives of the control and as such compliance is considered unnecessary or unreasonable in the circumstances as follows:

·    The penetration of the height limit is a direct consequence of the design of the proposed development which incorporates a communal rooftop terrace that necessitates balustrading and shade elements which protrudes beyond the permitted height plane. The proposal as designed seeks to maximise amenity for future occupants via the provision of this communal rooftop open space area. Proposed rooftop structures i.e., lift overrun, lobby, seating, BBQ facilities are directly correlated to the design, function and intended use of the roof top communal open space area which forms an integral part of the proposed development. The structures service the rooftop communal open space area which has been provided to benefit the future occupants of the site. The variation relates to features of the property which will significantly improve the amenity of the occupants.

·    The area of the height breach does not contain habitable residential floor space and hence is not a means of attempting to achieving greater yield but rather greater amenity through the provision of the rooftop COS which is a suitable response in an E2 zone noting the ADG contemplates rooftop COS in a Town Centre location.

·    The Design Excellence Panel have also issued a further Design Excellence Certificate was issued dated 10 October 2023 in relation to this scheme meaning design excellence is achieved with this scheme as proposed.

·    The additional height proposed does not result in detrimental environmental planning outcomes, as it does not give rise to adverse solar access, view loss or visual or acoustic privacy impacts on site, or to neighbouring properties.

Planner’s comment:

The variation to the height mainly relates to the roof top common areas. The common areas provide significant amenity to the residents in the form of outdoor open space, BBQ facilities, garden areas and shade. The amenity previously approved has been retained for both Towers D and E.

The primary reason of why compliance is unreasonable or unnecessary is the fact that additional amenity is provided for residents and access as well as servicing is required to the rooftop areas of both buildings.

As such, the argument provided by the applicant is supported.

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 penetration of the height limit is a direct consequence of the design of the proposed development which incorporates a communal rooftop terrace. The noncompliance to height relates to features of the property which will significantly improve the amenity of the occupants.

·    The area of the height breach does not contain habitable residential floor space and hence is not a means of attempting to achieving greater yield.

·    The additional height proposed does not result in detrimental environmental planning outcomes, as it does not give rise to adverse solar access, view loss or visual or acoustic privacy impacts on site, or to neighbouring properties.

·    Planner’s comment:

·    The development is determined as being consistent with the objectives of the zone and planning control.

·    The development is retaining a crucial rooftop amenity for Towers D and E in the form of common open spaces and associated amenities.

·    There are no adverse planning issues being generated. In this regard, the impacts are consistent with the Planning Proposal and final Urban Design Study that accompanied the proposal.

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 standard and the objectives for development within the zone in which the development is proposed to be carried out. It is also determined that the development is consistent with the Planning Proposal and the Final Urban Design Study and as such, the development is consistent with expected outcomes.

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

 

(c)     Clause 4.6 - Variation to Floor Space Ratio

As shown in table 1, the approved floor space ratio of the entire development (Stages 1 & 2) and the subject development (Stage 2) is described below.

The ‘site area’ for the purposes of Clause 4.5 (Floor space ratio) exclude the laneway land zoned for acquisition and therefore in relation to ‘site area’, it is important to understand that the calculations are undertaken as a “net site area” and then “gross site area” relevant to the development.

·    Net site area of Lot 2 which occupies 4,448 square metres (Not including the laneway).

·    Gross site area occupies 5,068.05 square metres (Includes the laneway and road dedication area).

When considering net site area of 4,448 square metres, the floor space ratio is calculated at 7.85:1 which is a variation of 4.7% or 1,577.9 square metres.

When considering gross site area of 5,068.05 square metres, the floor space ratio is 6.89:1 and under by 3,072 square metres or 0.61:1.

 

Table 1 - Existing approved FSR and GFA relative to Site Areas for

Stage 1 and 2

 

 

Table 2 (Proposed FSR and GFA Relative to Site Area for Stage 2)

 

 

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

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

Applicant’s justification:

The proposal is consistent with the objectives of the E2 - Local Centre Zone, as set out below.

·    To strengthen the role of the commercial centre as the centre of business, retail, community and cultural activity.

The proposal continues to provide for an active ground floor to contribute to the role of the Merrylands Town Centre as the centre of business, retail, community and cultural activity and the development will strengthen the role of Merrylands Town Centre given the nature of the proposal.

·    To encourage investment in commercial development that generates employment opportunities and economic growth.

The proposal continues to provide for an active ground floor to contribute to employment generation and economic growth and the extent of residential units will also provide greater patronage of Merrylands Town Centre to further generate economic growth.

·    To encourage development that has a high level of accessibility and amenity, particularly for pedestrians.

The development has a high level of accessibility and amenity with good connectivity elsewhere to Merrylands Town Centre and public transport. The proposal is providing a mixture of compatible uses and for redevelopment in an accessible location with a scheme that exhibits high levels of amenity and accessibility.

·    To enable residential development only if it is consistent with the Council’s strategic planning for residential development in the area.

The development provides residential development consistent with Councils strategic planning for residential development in the area - notably Merrylands Town Centre Precinct which envisages residential development above ground floor commercial development.

·    To ensure that new development provides diverse and active street frontages to attract pedestrian traffic and to contribute to vibrant, diverse and functional streets and public spaces.

The proposal provides for an active ground floor to the primary street frontages to attract pedestrian traffic and contribute to vibrant, diverse and functional streets and public spaces.

In accordance with the provisions of Clause 4.6(4) Council can be satisfied that this written request has adequately addressed the matters required to be demonstrated by Clause 4.6(3). As addressed the proposed development is in the public interest as it remains consistent with the objectives of the FSR control. In addition, the proposal is consistent with the objectives of the zone as addressed previously in this statement.

Planners comment:

The development is providing a mix of compatible land uses within an accessible location to retain establishments and public transport and related services. It can be argued that all five objectives stated are complied with due to how the development performs and location within a town centre environment.

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

Applicant’s justification:

The objectives of the FSR development standard are stated as:

(a) to establish a maximum floor space ratio to enable appropriate development density,

(b) to ensure that development intensity reflects its locality.

The current development proposal is entirely consistent with the above objectives and is appropriate on environmental planning grounds based on the following:

The proposed building is designed to align with the intended outcome of the planning proposal in terms of height and yield for the site and therefore the proposal, despite the very minor exceedance to the FSR standard continues to satisfy objective (a) in that the FSR proposed enables an appropriate development density. The extent and quantum of GFA proposed complies across the entirety of the site area to ensure that the proposed FSR enables an appropriate development density as contemplated for the stretch scheme in the original Urban Design Work that sought the additional uplift and modelled the extent of density for the site. Given the gross site FSR is 6.89:1 and well below the 7.5:1 the intended development density is clearly appropriate and even when considering the net site area (being only the E2 zoned lands) the variation is minor as to be inconsequential in terms of development intensity. This directly satisfies objective a).

The proposed additional floor space results in a high quality development that is an improved Urban Design outcome with the series of towers across the site, of varying heights, and reflects the desired future built form and character of the locality in terms of the intensity of development- noting this was modelled as part of the Planning Proposal for the site. The development proposal and the GFA proposed, satisfies objective b) given the FSR proposed results in a height outcome that is aligned with the Urban Design work for the site. Again, reinforcing on the basis of the entirety of the site area the proposal would be compliant, and significantly below the maximum intensity permitted noting that is the basis of the original approval for the site that this scheme continues to follow and continues the rationale applied and agreed in relation to environmental planning grounds with the original DA approved for the broader site.

Of relevance to these objectives is that the DEP have also issued a further Design Excellence Certificate was issued dated 10 October 2023 in relation to this scheme- meaning design excellence is achieved with this scheme as proposed and the Design Excellence provision at Clause 6.14 of the LEP is satisfied.

Therefore, the proposal satisfies the objectives of the control.

Planners comment:

As demonstrated, the variation of floor space ratio across the site is reduced in percentage terms from 12.33% to 4.72% (Based on a site comprising only of Lot 2). Despite the uplift in building height and floor space ratio, this outcome is supported as the variation is reduced.

Based on gross site area, compliance would be achieved.

The development is determined as being consistent with the Planning Proposal and the Design Excellence Panel has granted a Design Excellence Certificate for the uplift of floor space ratio.

The development is considered appropriate given the location within the Merrylands Town Centre.

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

Applicant’s justification:

It is considered that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case as underlying objectives are achieved. In particular:

·    The proposed building is designed to align with the intended outcome of the planning proposal in terms of height and yield for the site.

·    The extent and quantum of GFA proposed complies across the entirety of the site area to ensure that the proposed FSR enables an appropriate development density as contemplated for the stretch scheme in the original Urban Design Work that sought the additional uplift and modelled the extent of density for the site.

·    The proposed additional floor space results in a high quality development that is an improved Urban Design outcome with the series of towers across the site of varying heights and reflects the desired future built form and character of the locality.

Planner’s comment:

The variation to the control may be supported on the grounds that the development is consistent with the Planning Proposal and that the Design Excellence Panel has granted a Design Excellence Certificate for the uplift of floor space ratio.

In this regard, the development aligns with the intended outcomes of the Planning Proposal and the variation to floor space ratio in percentage terms is reduced. As such, the development is consistent with the planning outcomes across the site.

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

Applicant’s justification:

·    The proposal provides a suitable and sustainable quantum of floor space and complies across the entirety of the site area and enables a suitable development outcome on the site.

·    The departure on a net site area basis, but compliance on a gross site area basis, follows the prior approval for the site in terms of the methodology on the appropriate calculation of site area for the purposes of FSR.

·    The Design Excellent Panel have also issued a further Design Excellence Certificate was issued dated 10 October 2023 in relation to this scheme meaning design excellence is achieved with this scheme as proposed and the development achieves design excellence.

Planner’s comment:

The development overall is consistent with the Planning Proposal and the final Urban Design Study. The impacts are consistent with those outlined within the final Urban Design Study.

The Design Excellence Panel has granted a Design Excellence Certificate for the uplift of floor space ratio meaning that design excellence is achieved for the development.

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 floor space ratio 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))

There are no draft planning instruments that need to be considered.

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 Chapter.

·    Part C - Development in Business Zones Chapter.

·    Part F2-6 - Merrylands Town Centre.

·    Part F2-8 - Merrylands and Mc Farlane Street Precinct.

·    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.

A variation is identified being the car parking numbers at Part 3.3 of Chapter B3 Residential Flat Buildings Chapter and Part G3 Traffic, Parking, Transport and Access (Vehicle) chapter of the Cumberland Development Control Plan 2021.

As previously described above under Part 3J of the Apartment Design Guide, there is adequate car parking across the whole of the basement supporting Towers D and E but the allocation is unsatisfactory as shown in the table below.

A condition should be provided for any consent issued addressing the need to reallocate residential spaces to visitor car parking spaces within the development.

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))

A Planning Agreement has been executed between Council and the property developer dated Wednesday 9 November 2022. The Planning Agreement incorporates the increase in the height of Building D and E and additional floor space ratio into its provisions. The Agreement seeks to provide the following public benefits:

·    Construction and dedication to Council (in perpetuity) of a street sweeper parking and storage space with other amenities in the development site, to assist in the ongoing cleansing and maintenance of the public domain in the Merrylands town centre and new Merrylands Civic Square.

·    A monetary contribution towards local infrastructure improvements and public domain upgrades in the Merrylands town centre.

·    An offset to the s7.11 local infrastructure contribution for the development for the value of fit out costs related to the street sweeper parking and storage space.

The Agreement does not need to be modified.

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).

Other matters:

In accordance with s7.24(4) of the Environmental Planning and Assessment Act, 1979 as amended by the Environmental Planning & Assessment Amendment (Housing and Productivity Contribution) Act 2023, the development is subject to the (Housing and Productivity Contribution) Act 2023.

In accordance with Part 2 of Schedule 5 of the Environment Planning & Assessment (Housing and Productivity Contribution) Order 2023 (‘the Order’), the Order does not apply to a development consent granted to a pending development application (Pending DA).

A ‘Pending DA’ as per Schedule 1 of the Order and s16 of the Regs 2021 is as follows:

a)   a development application that is made, but not determined, before the commencement of this Order, or

b)   a development application that is made and determined before the commencement of this Order, but has not been finally determined, or

c)   an application for a complying development certificate that is made, but not determined, before the commencement of this Order.

In this regard, the provision will not apply to the current development application.

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 Cumberland Development Control Plan 2021, the proposal was publicly notified for a period of fourteen (14) days between Thursday 8 August and Thursday 22 August 2023. Council received two submissions from the same objector following the notification period. The submissions are outlined below.

 

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. A total contribution of $1,185,254.50 has been calculated accounting for:

·    The increase of additional floors and changes that are occurring within the existing floors.

·    Payment of monetary development contributions for that part of the development that exceeds the maximum permitted floor space ratio for the site (less deduction for fit out) as per the Executed VPA.

The contributions payable are outlined in the table below.

 

The contributions are payable prior to the issue of a Construction Certificate.

It is noted that the Executed VPA also required the applicant to separately make monetary contributions to Merrylands Town Centre Public Domain Upgrade. In this regard, the developer is to provide security to Council as specified in Part 4 of the VPA. An appropriate condition has been included in the recommended conditions of consent.

Disclosure of Political Donations and Gifts

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

The proposed development is appropriately located within the E2 Commercial Centre zone under the provisions of the Cumberland Local Environmental Plan 2021 however variations in relation to Building Height and Floor Space Ratio are sought.

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

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

 

Report Recommendation: 1.   That the Clause 4.6 variation request to contravene the Building Height and Floor space Ratio development standards, pursuant to the Cumberland LEP 2021 be supported. 2.   That Development Application 2023/0243 for alterations and additions to the approved mixed use building including an additional 4 storeys in building D and 3 storeys in building E to provide additional 73 apartments on land at 239 Merrylands Road Merrylands being Lot 2 in DP 1271537 be approved subject to conditions as listed in the attached schedule. 3.   Persons whom have lodged a submission in respect to the application be notified of the determination of the application.

 

1.      Draft Notice of Determination  

2.      Architectural Plans  

3.      Redacted Submissions  

4.      Appendix A - Apartment Design Guide  

5.      Appendix B - CLEP2021 Assessment Table  

6.      Appendix C - Cumberland Development Control Plan 2021 - Residential Flat Buildings Chapter Assessment  

7.      Appendix D - Cumberland Development Control Plan - Development in Business Site Specific Chapter  

8.      Clause 4.6 Variation request for Building Height and Floor Space Ratio  

9.      Design Excellence Certificate granted by the Design Excellence Pane   

 

Attachment 1

Draft Notice of Determination

 22 November 2023

Attachment 2

Architectural Plans

 22 November 2023

Attachment 3

Redacted Submissions

 22 November 2023

Attachment 4

Appendix A - Apartment Design Guide

 22 November 2023

Attachment 5

Appendix B - CLEP2021 Assessment Table

 22 November 2023

Attachment 6

Appendix C - Cumberland Development Control Plan 2021 - Residential Flat Buildings Chapter Assessment

 22 November 2023

Attachment 7

Appendix D - Cumberland Development Control Plan - Development in Business Site Specific Chapter

 22 November 2023

Attachment 8

Clause 4.6 Variation request for Building Height and Floor Space Ratio

 22 November 2023

Attachment 9

Design Excellence Certificate granted by the Design Excellence Pane

 22 November 2023