14 February 2024

A meeting of the Cumberland Local Planning Panel will be held at 11.30am via Electronic Determination on Wednesday, 14 February 2024.

Business as below:

Yours faithfully

Peter J. Fitzgerald

General Manager

ORDER OF BUSINESS

1.      Receipt of Apologies

2.      Declarations of Interest

3.      Reports:

          -        Development Applications

          -        Planning Proposals

4.      Closed Session Reports

 

 14 February 2024

CONTENTS

Report No.  Name of Report                                                                                         Page No.

1       Development Applications

LPP001/24... Development Application - 8 - 12 Good Street, Westmead........................... 5

LPP002/24... Development Application - 45 - 47 Merrylands Road, Merrylands.......... 267

LPP003/24... Development Application - Daruga Avenue, Pemulwuy............................ 409

LPP004/24... Development Application - 5 Cumberland Road, Auburn......................... 655

LPP005/24... Development Applicarion - 11 Moree Avenue, Greystanes...................... 723

 

 14 February 2024

 

Item No: LPP001/24

Development Application - 8 - 12 Good Street, Westmead

Directorate:                                       Environment and Planning

Responsible Officer:                       Executive Manager Development and Building   

 

 

1.  Development Application No. DA2023/0320 was accepted on 2 June 2023 for the alterations and additions to a residential flat building approved under DA2021/0682 to accommodate an 86 place centre-based child care centre with outdoor play area on the ground floor changes to the design of basement levels, deletion of ground floor residential units, changes to communal space and various internal and external changes to the building.

2.  The application was publicly notified to occupants and owners of the adjoining properties for a period of 14 days between 22 June 2023 and 6 July 2023. In response, two (2) submissions were received.

 

3.  On 1 September 2023, a request for information was issued to the applicant detailing various issues and in response, the applicant carried out a number of design changes including a change to the provision of outdoor child play area and a reduction in child capacity from 86 to 85.

4.  The variations are as follows:

 

5.  The application is referred to the Panel as SEPP 65 applies to the development and is 4 or more storeys in height.

6.  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 is comprised of three (3) lots described as 8-12 Good Street Westmead. The legal description of the lots is Lot 7 DP 9675, Lot 8 DP 9675 and Lot 9 DP 9675. The site is rectangular in shape, has a total area measuring 1,751sqm and is currently void of any natural or built structures as shown in Figure 2.

Immediately adjoining development includes multi storey contemporary residential flat buildings (RFB) to the north and south and older forms of RFBs on the opposing side of Good Street to the east. Immediately to the west is a five storey residential flat building comprising 46 dwellings and two levels of basement parking which appears to be in the final stages of construction (DA2019/141/1). A power pole and overhead power lines are located above the footpath fronting the site.

The site is zoned R4 Residential and is located at the interface to Parramatta Council’s Local Government Area boundary to the east. The site is buffered by R2 Low Density Residential land to the north and west and E3 Productivity Support zoned land to the south as shown in Figure 1. The Great Western Highway runs perpendicular to Good Street and is located approximately 90m south of the subject site.

The site is identified as being subject to a flood planning level according to Council’s mapping with only a small portion of the southwestern corner being ‘Low Risk (PMF)’ flood liable land.

Figure 1 – Locality Plan of subject site

Figure 2 – Aerial view of subject site

Figure 3 – Site inspection photos taken 29 November 2023

Description of The Development

The applicant seeks approval for an amending DA to introduce a new use and associated alterations and additions to an approved Development Application (DA) for a residential flat building development (DA2021/0682). The subject development application as originally submitted proposed an 86 place centre-based child care centre. As noted earlier in the report, the applicant has since implemented some design changes which has caused child placements to be reduced from 86 to 85.

The introduction of the child care centre results in modifications to various aspects of the development approved under DA2021/0682 including the residential apartment mix, design of the basement levels, the provision of communal space and various other internal and external design changes to the building and the site. Following is a description of the child care centre followed by the resulting changes to the residential component of the development approved under DA2021/0682.

Centre-based child care centre

The new centre-based child care centre will occupy the majority of the ground floor of the building which is currently approved to accommodate six (6) residential apartments. The centre comprises the following spaces:

Indoor child play areas as described below:

 

 

·         Two (2) amenities rooms comprising toilets, sinks and a nappy changing facility.

·    A cot room and bottle prep room.

·    A managers’ office, a staff room and a meeting room.

·    Four (4) internal and two (2) external storage areas/facilities.

·    A kitchen, a laundry and a WC.

·    Provision of twenty-four (24) parking spaces, sixteen (16) bicycle spaces, a waste room, a pump room and a plant room in Basement 1. The composition of changes to the basement level associated with the child care centre is discussed in greater detail below.

Basement level changes

Under DA2021/0682, ‘Basement 1’ accommodates parking of motor vehicles and various service-related rooms/facilities associated with the residential apartments. The subject DA proposes to increase the extent of the floor plate, and alter the layout to accommodate parking and service-related rooms for use by the new child care centre. The design changes are identified in detail as follows:

·    Twenty-two (22) parking spaces inclusive of two (2) disabled spaces are to be allocated for use by the child care centre.

·    A designated waste room is added to serve the child care centre.

·    A new lift provides internal access to the child care centre.

·    Two (2) residential visitor spaces are located in the south eastern corner of the level and is separated from the child care centre parking spaces by an automatic gate.

Operational details

·    The maximum number of child placements is 85 comprising of the age ratios noted in the aforementioned table identifying the indoor child play areas.

·    Hours of operation are 7.00am to 6.00pm, Monday to Friday.

·    Thirteen (13) staff are proposed.

Changes to the development as approved under DA2021/0682

The addition of a child care centre results in changes to the design of the residential component of the development approved under DA2021/0682. The changes are detailed as follows:

Deletion of residential units

·    Deletion of five (5) ground floor residential apartments (Units 002 to 006) to accommodate the new child care centre.

·    Deletion of a residential apartment (Unit 001) on the ground floor to accommodate a part open/enclosed communal area to be used by the residents.

Change to unit mix

·    The deletion of the abovementioned residential apartments results in a change to the residential apartment mix and yield as follows:

 

 

Provision of communal space

The allocation of communal open space associated with the residential component of the development is modified in response to the introduction of outdoor child play area that occupies the entirety of the rear (west) and side (north) setback areas of the development at ground level. The following allocation of communal space is proposed:

·    Enclosed communal space and open communal space is provided at the south eastern corner of the ground floor amounting to areas of 40sqm and 48.23sqm respectively.

·    Communal open space on the roof level increases from 215.98sqm to 391.17sqm resulting in a total provision of 439.4sqm.

External design changes

The following external design changes to the building are sought:

·    Non-trafficable roof area is added to the floor slab of Level 1 extending over the northern and western setbacks of the site to redirect view lines from balconies and windows of the residential apartments to the outdoor play areas of the proposed child care centre.

·    Privacy screens are added to the north facing balconies of Units 104, 105, 204, 205, 304 and 305 and to the west facing balcony of Unit 102.

·    A north facing window to a bedroom of Units 105, 205 and 305 is modified to be hi-light windows.

·    A north facing window to the living room of Units 104, 204 and 304 is modified to be hi-light windows.

·    The west facing living room window to Units 102, 202 and 302 are modified to be hi-light windows.

·    The extent of communal open space on the roof level is altered as detailed above.

 

 

Basement level changes

Both ‘Basement 1’ and ‘2’ are modified with respect to the residential component of the development. Design changes to Basement 1 include:

·    The provision of two (2) residential visitor parking spaces in the south eastern corner of the level. An automatic gate provides separation from the parking spaces of the child care centre.

·    Sixteen (16) bicycle spaces.

·    A new lift provides direct access to the child care centre.

·    The position and extent of the waste storage room is modified and now includes a bulky waste storage space.

The building footprint of Basement 2 is increased to match Basement 1 and to accommodate the following design changes:

·    The parking layout is modified to accommodate thirty-one (31) parking spaces consisting of twenty-six (26) resident spaces (inclusive of five disabled spaces) and five (5) visitor spaces (inclusive of a car wash space).

·    Three (3) bicycle spaces.

·    Repositioning of storage associated with the residential apartments throughout the level.

Other changes

Other changes to the development approved under DA2021/0682 include the following:

·    A centrally located fire stair currently providing access to the residential levels is modified to also provide access to the basement levels.

·    Fire stair providing egress from both basement levels located within the front setback is repositioned.

·    The extent of the fire hydrant booster is modified.

·    As a result of outdoor area at ground level being converted to outdoor child play area, the landscape concept plans are modified.

·    As a result of the change to the extent of the basement levels, the provision of deep soil zone is altered to approximately 22.69% (397.14sqm).

 

 

 

History

On 9 February 2016, a development application (DA2015/222/1) was approved under delegated authority for ‘Demolition of existing structures; consolidation of 3 lots into 1 lot; construction of a 5 storey residential flat building comprising 33 units over basement parking accommodating 40 carparking spaces’. Demolition works has occurred in accordance with this development consent.

On 30 June 2021 pre-lodgement advice was issued for ‘Alterations and additions to an approved residential flat building to introduce an additional storey, reduce units from 33 to 31, changes to apartment mix reconfiguration and changes to basement level’.

On 13 July 2022, a Deferred Commencement approval was issued by the Cumberland Local Planning Panel to a development application (DA2021/0682) for ‘Construction of a six storey Residential Flat Building comprising 31 units with two levels of basement parking and associated works’. On 25 May 2023, operational consent was issued for DA2021/0682.

On 13 September 2022, pre-lodgement advice (PL2022/0068) was issued for ‘Alterations and additions to an approved residential flat building to accommodate a 90 place child care centre on the ground floor’.

Applicants Supporting Statement

The applicant has provided a Statement of Environmental Effects prepared by The Planning Hub dated 30 May 2023 which was received by Council on 30 May 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 development application was referred to Council’s Development Engineer for comment who has advised that the development proposal is satisfactory with regard to stormwater drainage, traffic and parking provision and therefore can be supported subject to recommended conditions of consent.

Environment and Health

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

 

Waste Management

The development application was referred to Council’s Waste Management Officer for comment who has raised issue with the disposal of commercial and residential operational waste. It is considered that the matters raised are able to be addressed by conditions of consent as detailed in Attachment 1.

Childrens Development Team

No objection to the development was raised.

External Referrals

Transport for NSW (TfNSW)

No objection to the development was raised by TfNSW subject to conditions.

Endeavour Energy

No objection to the development was raised by Endeavour Energy subject to conditions.

Sydney Water

No objection to the development was raised by Sydney Water subject to conditions.

Planning Comments

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

State Environmental Planning Policies

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

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

SEPP 65 applies to the development as the new child care centre requires design changes to the residential component of the development approved under DA2021/0682. The design changes result in a building that is over 3 storeys 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.

A comprehensive assessment against SEPP 65 and the ADG is contained in Attachment 7.

Local Environmental Plans

Cumberland Local Environmental Plan 2021 (CLEP)

The provision of the Cumberland Local Environmental Plan 2021 is applicable to the development proposal. It is noted that the development is generally compliant with the key statutory requirements of the Cumberland Local Environmental Plan 2021 and the objectives of the R4 High Density Residential.

(a)     Permissibility:

The proposed development is defined as a ‘centre-based child care centre’ and a ‘residential flat building’ and is permissible in the R4 High Density Residential zone with consent.

centre-based child care facility means -

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

(i)  long day care,

(ii)  occasional child care,

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

(iv)  preschool care, or

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

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

Note -

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

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

Figure 4 – Cumberland LEP 2021 Compliance Table

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.

(b)     Clause 4.6 – Variation to Building Height

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

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

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

 

 

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

Applicant’s justification: The development continues to provide for the housing needs of the community, continues to provide a range of unit types, will not preclude the ability of other land uses to provide facilities or services to residents and does not adversely impact the amenity of the surrounding residential environment.

Planner’s comment: The development results in a reduction to the total yield (31 to 25 apartments) and a change to the mix of apartments (refer to development description earlier in this report). Notwithstanding, it is considered that a broad range of apartment types is maintained and a satisfactory level of residential amenity (of residents within the development and surrounding properties) will be maintained by the provision of acoustic measures to limit the operational noise generated by the child care centre. This includes the provision of acoustic barriers around the perimeter of outdoor child play areas which is supported by Council’s Environmental Health Unit (EHU). 

The development is considered to satisfy the objectives of the R4 High Density Residential zone.

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

Applicant’s justification: The development continues to provide a scale and intensity that is consistent with surrounding development what is envisaged for the site and surrounding area. The development is designed to be compatible with the character of the locality and the proposed additions do not exceed the maximum building height control. Material textures and colours have been utilised to reflect the buildings commercial and residential use character. Strict compliance with the height limit would not result in reduced solar access impacts.

Planner’s comment: It is noteworthy that the extent of the building height breach remains unchanged from what was considered and deemed to be appropriate by the Cumberland Local Planning Panel under the related development application, DA2021/0682. Additionally, based on an assessment of the architectural plans and amended sun shadow diagrams of the development the following is acknowledged:

§ The height of the building remains unchanged and is consistent with adjoining residential flat development to the north and west which are of equivalent building heights.

§ The development maintains an appearance that is consistent with contemporary residential flat development in the area despite the introduction of a child care centre on the ground floor as detailed in the submitted elevations in Attachment 2.

§ Sun shadow diagrams of the development were submitted (refer to Figure 5 and 6) with the application indicating no significant change to the extent of shadows over surrounding properties compared to the development approved under DA2021/0682.

Figure 5. Extent of shadows cast by the approved development DA2021/0682

    Figure 6. Extent of the shadows cast by the subject DA

Based on the above reasons, Council considers the development to maintain consistency with the objectives of the standard.

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

Applicant’s justification: The proposed works do not result in a numerical increase in the approved building height and therefore the exceedance continues to be reasonable as it only relates to the lift overruns and roof structures and does not result in adverse impacts on surrounding development.

Planner’s comment: Council concurs with the justification provided by the applicant and considers compliance to be unnecessary noting these building elements do not contain internal habitable floor area, a relatively small in size and do not add significantly to the shadow cast by the development. It is Council’s opinion that to require a reworking of the design to achieve compliance would be unreasonable in this instance.

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 proposed non-compliance was deemed acceptable under the related DA, DA2021/0682, the proposed development does not result in additional variations or adverse impacts on adjoining properties and the area of exceedance only relates to the lift overrun, a small portion of the rooftop area to facilitate stairs and services.

Planner’s comment: Council considers that there are sufficient environmental planning grounds to justify contravening the development standard noting the following:

§ Sufficient solar access is maintained to surrounding residential development based on the sun shadow diagrams which show no significant change to the extent of shadow cast over these properties as currently approved.

§ As discussed above, the development maintains compliance with the objectives of the prescribed land use zone and the intent of the height of buildings development standard.

Council therefore considers the applicant’s written justification to be well founded.

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 height of buildings 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))

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 is relevant to the development proposal.

The development has been assessed using the following chapters:

Child care centre component:

·    Part E1 – Centre-based child care centres

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

·    Part G4  – Stormwater & Drainage

·    Part G5 – Sustainability, Biodiversity & Environmental Management

·    Part G7 – Tree Management & Landscaping

Residential component:

·    Part B3 – Residential flat buildings

·    Part B5 - Adaptable housing and housing mix

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

·    Part G4  – Stormwater & Drainage

·    Part G5 – Sustainability, Biodiversity & Environmental Management

·    Part G8 – Waste Management

The development is found to comply with the relevant provisions except for the following:

Figure 7 – Cumberland DCP 2021 - Compliance Table

Clause	Control	Proposed	Complies
Part E1, clause 2.2, C5	Extent of outdoor child play area The front setback area shall not be used as or included in the calculation of outdoor play space.	The outdoor child play area of the child care centre encroaches approximately 7% (14sqm) of the front setback area of the development which does not comply.	No
Part B3, clause 3.2, C3	Extent of basement walls Where practicable, basement walls not located on the side boundary shall have minimum setback of 1.2m from the side boundary to allow planting.	The side setback of Basement 2 is extended towards the southern side boundary resulting in a side setback of 1m.	No
Part B5, clause 2.2, C1	Residential apartment mix A minimum provision of one bedroom/studio dwellings (10%), and three plus-bedroom dwelling types (10%) with the balance provided as 2 bedroom dwellings.	Due to the deletion of six (6) ground floor residential units to accommodate the new child care centre, the apartment mix is altered to provide the following percentage yields: -     8% 1 bedroom; and -     8% 2 bedroom.	No

As indicated in the compliance table above, the proposed development departs from three controls of the CDCP.

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

Extent of outdoor child play area

The non-compliance in this instance is considered acceptable noting the extent of the encroachment is insignificant relative to the size of the front setback area (approximately 7% of the front setback area) and the outdoor play area cannot be seen from the public domain due to being screened by building elements including an outdoor storage room and a fire egress stair. As such, it is considered that the visual and acoustic amenity of children and users of the centre will not be compromised by this non-compliance.

Extent of basement level walls

The non-compliance is considered acceptable in this instance in noting that the southern wall of Basement 2 is now in alignment with the currently approved wall of the basement level above. This is more practical from a construction perspective. Planning-wise, the building mass above ground level remains consistent with what was approved under the related DA noting that the extension of Basement 2 will not be completely underground and will therefore poses no impact on the amenity of the adjacent properties.

Residential apartment mix

The apartment mix as approved under DA2021/0682 provided yields of 6.4% for both 1 and 2 bedroom apartment types. The proposed development reduces the degree of the non-compliance by increasing the proportion of these apartment types to 8%. As the extent of the non-compliance is reduced from what is currently approved, the non-compliance is considered to be acceptable in this instance.

Car park provision

The provision of car parking for both uses is fully compliant as detailed in the following table.

Use	Parking requirement	Proposed	Compliance
Child care centre	CDCP, Part G3, clause 3 Onsite parking is to comply at a minimum with the rates in Table 1.   Table 1 specifies that For ‘Centre Based Child Care Centres’ – The parking rate shall rely on the Child Care Planning Guideline’ (The Guide).   The Guide specifies the following parking rate for centres located more than 400m away from a metro strain station: -    1 space per 4 children	Based on 85 child placements, 22 parking spaces are provided in Basement 1.	Yes
Residential apartments	CDCP, Part G3, clause 3 Onsite parking is to comply at a minimum with the rates in Table 1: -    1 and 2 bedroom-1 space/dwelling -    3 or more bedrooms–1.5 space/dwelling -    Visitor parking–0.25 space/dwelling -    Bicycle parking–1 space/3 dwellings	Based on an apartment mix of 2 x 1 bed, 21 x 2 bed and 2 x 3 bed, the following parking is provided:   26 x residential 7 visitor 19 bicycle	Yes

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).

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 including residents in the adjoining Local Government Area of Parramatta for a period of 14 days between 22 June 2023 and 6 July 2023. The notification generated two (2) submissions in respect of the proposal with none disclosing a political donation or gift. The issues raised in the public submissions are summarised and commented on as follows:

Figure 8 – Submissions summary table

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

In view of the foregoing analysis, it is considered that the development, 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.

Noting the decrease in number and change to the mix of residential units (refer to description of development), contributions imposed as part of the related DA, DA2021/0682 requires amendment. The Section 7.11 contribution of $450,143.00 is amended to $386,474.00 and will be applied as part of the ‘amending’ condition of consent (Condition 6) in the Draft Notice of Determination.

Housing and Productivity Contribution (HPC)

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 Schedule 6, Part 9, 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 02 June 2023, the provisions of the HPC do not apply.

Disclosure of Political Donations And Gifts

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

The development application has been assessed in accordance with the relevant requirements of the Environmental Planning and Assessment Act 1979, Environmental Planning and Assessment Regulation 2021, Cumberland Local Environmental Plan 2021, Cumberland Development Control Plan 2021 and is considered to be satisfactory for approval subject to conditions.

The proposed development is appropriately located within the R4 High Density Residential zone under the relevant provisions of the Cumberland LEP, however variations in relation to the height of buildings development standard under the Cumberland LEP and the extent of child play area, basement level walls and the residential apartment mix under the Cumberland DCP 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.

There are no consultation processes for Council associated with this report.

There are no financial implications for Council associated with this report.

There are no policy implications for Council associated with this report.

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

 

Report Recommendation: 1.   That the Clause 4.6 variation request to contravene the height of buildings development standard, pursuant to the Cumberland LEP 2021, be supported. 2.   That Development Application No. DA2023/0320 for alterations and additions to the residential flat building approved under DA2021/0682 to accommodate an 85 place centre-based child care centre with outdoor play area on the ground floor, changes to the design of basement levels, deletion of ground floor residential units, changes to communal space and various internal and external changes to the building on land at 8-12 Good Street WESTMEAD NSW 2145 be Approved subject to conditions listed in the attached schedule. 3.   Persons who 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 Request  

4.      Submissions received  

5.      Cumberland LEP Assessment  

6.      Cumberland DCP Assessment  

7.      State Environmental Planning Policies Assessment  

8.      Child Care Planning Guideline Assessment  

9.      Approved Architectural Plans DA2021/0682   

 

DOCUMENTS
ASSOCIATED WITH
REPORT LPP001/24

Attachment 1

Draft Notice of Determination

 14 February 2024

DOCUMENTS
ASSOCIATED WITH
REPORT LPP001/24

Attachment 2

Architectural Plans

 14 February 2024

DOCUMENTS
ASSOCIATED WITH
REPORT LPP001/24

Attachment 3

Clause 4.6 Request

 14 February 2024

DOCUMENTS
ASSOCIATED WITH
REPORT LPP001/24

Attachment 4

Submissions received

 14 February 2024

DOCUMENTS
ASSOCIATED WITH
REPORT LPP001/24

Attachment 5

Cumberland LEP Assessement

 14 February 2024

DOCUMENTS
ASSOCIATED WITH
REPORT LPP001/24

Attachment 6

Cumberland DCP Assessment

 14 February 2024

DOCUMENTS
ASSOCIATED WITH
REPORT LPP001/24

Attachment 7

State Environmental Planning Policies Assessment

 14 February 2024

DOCUMENTS
ASSOCIATED WITH
REPORT LPP001/24

Attachment 8

Child Care Planning Guideline Assessment

 14 February 2024

DOCUMENTS
ASSOCIATED WITH
REPORT LPP001/24

Attachment 9

Approved Architectural Plans DA2021/0682

 14 February 2024

 14 February 2024

 

Item No: LPP002/24

Development Application - 45 - 47 Merrylands Road, Merrylands

Directorate:                                       Environment and Planning

Responsible Officer:                       Executive Manager Development and Building   

 

 

1.  Development Application 2023/0285 was accepted on the 19 June 2023 for the demolition of existing structures and construction of a four storey residential apartment building pursuant to Chapter 2 Affordable Housing of State Environmental Planning Policy (Housing) 2021 comprising of 17 apartments over basement parking with associated stormwater and landscaping works and strata subdivision into 17 lots.

2.  The application was publicly notified to occupants and owners of the adjoining properties for a period of fourteen days between 10 July 2023 and 24 July 2023. In response, no submissions were received.

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

4.  The notable variations are delineated as follows:

 

5.  The application is referred to the Panel for determination.

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

Subject Site And Surrounding Area

The subject site is located at 45-47 Merrylands Road Merrylands and consists of Lot C in DP 320347 and Lot 25A in DP 417959. The site is regular in shape and has a total combined area of 1,277.3 square metres with a combined frontage of 31.09m to Merrylands Road, Merrylands. The subject allotment is zoned R4 – High Density Residential under the Cumberland Local Environmental Plan 2021. The site as a combined entity contains two single storey clad dwellings (one dwelling house per allotment), various trees  along the western side boundary, two separate vehicular crossovers, two fibro outbuildings and two detached fibro garages and an awning.

The developments adjoining to the east, west and north (rear) are older low density developments being dwelling houses. The locality is undergoing transition and comprises of older low density housing stock and newer high density developments being residential apartment buildings and shop top housing developments.

Land to the north (bounded by Mombri Street) and immediate west is zoned R4 High Density Residential. A railway Line including the Merrylands Railway Station is located further to the west being approximately 340m from the site and the Merrylands Town Centre is located further west but on the western side of the Railway Line. Land to the east (eastern side of Loftus Street) is zoned R3 Medium Density Residential and land to the south is zoned R2 Low Density Residential. Granville Park is located to the south east on the opposite side of Merrylands Road.

Figure 1 - Locality Plan of subject site edged in red. Source: Council’s IntraMaps

Figure 2 - Zoning map with the subject site edged in purple. Source: Council’s IntraMaps.

Photos of the site taken during a site inspection on the 10 July 2023 are provided below:

Description of The Development

Council has received a development application that was accepted on the 19 June 2023  for demolition of existing structures and construction of a four storey residential apartment  building pursuant to Chapter 2 Affordable Housing of SEPP (Housing) 2021 comprising of 17 apartments  over basement parking with associated stormwater and landscaping works and strata subdivision into 17 lots.

Key features of the development proposal are as follows:

 

 

 

The dwelling mix of the proposal is as follows:

·    3 x 1 bedroom apartments (17.6%).

·    13 x 2 bedroom apartments (76.4%).

·    1 x 3 bedroom apartment (5.88%).

Other works:

·    Construction of a new vehicular crossing along south-eastern corner of site leading to basement entrance.

·    Landscaping works throughout site including planting of 13 trees.

·    Ancillary stormwater and driveway works.

·    Strata subdivision into 17 lots.

·    7 apartments out of 17 apartments are proposed to be used as affordable housing units.

History

A Pre - Lodgement meeting PL2022/0046 was held on the 24 November 2022 for the demolition of all existing structures, consolidation of 2 lots into 1 allotment and the construction of a four storey boarding house comprising of 38 double boarding rooms for 76 lodgers and 12 parking spaces.

The current application was accepted by Council on the 19 June 2023 for determination.

The application was deferred initially in relation to floor space ratio, building height, deep soil zone, setbacks, amenity, stormwater management, parking and traffic impacts.

Amended plans and additional information were submitted to Council on 31 October 2023 and 1 December 2023 respectively. The application did not warrant re-notification as the amendments made did not result in a greater environmental impact to the locality.

Applicants Supporting Statement

The applicant has provided a Statement of Environmental Effects prepared by Think Planners dated 11 May 2023 and 14 November 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 Engineering

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

Environment and Health

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

Tree Management

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

Waste Management

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

External Referrals

Endeavour Energy

The development application was referred to Endeavour Energy for comment. As per correspondence of 23 July 2023, it was advised that the development is supportable in terms of electricity connection and there is adequate clearance to the existing electricity asset close by subject to conditions.

 

 

Planning Comments

 

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

 

State Environmental Planning Policy (Housing) 2021

On 14 December 2023, the NSW Government consolidated the provisions of State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65) into the Housing SEPP and the Environmental Planning and Assessment Regulation 2021 (the Regulation). In addition, the NSW Government implemented in-fill affordable housing reforms to encourage private developers to boost affordable housing and deliver more market housing.

The process of consolidation does not affect the operations of the provisions or the Apartment Design Guide. An assessment of the Apartment Design Guide (ADG) is contained in Attachment B.

As per Schedule 7A Savings and transitional provisions, Section 8(1) of the State Environmental Planning Policy (Housing) 2021, the consolidated provisions regarding SEPP 65 and the housing reforms relating to in-fill affordable housing will not apply to the current development application as the amendment made to this policy by the amending policy does not apply to a development application made but not finally determined before the commencement date. The subject development application was lodged prior to the consolidated provisions coming into effect on 14 December 2023.

Therefore, an assessment against the controls under Chapter 2 – Affordable Housing, (Part 2 Development for affordable housing, Division 1 – In-fill affordable housing)  and Chapter 4 Design of residential apartment development of the State Environmental Policy (Housing) 2021 which commenced on the 14 December 2023 do not apply to this application.

Chapter 2 – Affordable housing (Part 2 Development for affordable housing, Division 1 In-fill affordable housing)

The assessment of the proposal was carried out against the now historical version dated 10 November 2023 - 13 December 2023 of Chapter 2 – Affordable Housing, (Part 2 Development for affordable housing, Division 1 – In-fill affordable housing) given the time of lodgement of the development application and based on the savings provisions discussed above.

It should be noted that the proposal fully complies with the key planning controls contained within the Housing SEPP and is considered acceptable from an environmental planning viewpoint.

A relevant assessment against the requirements of the SEPP is contained in Appendix A.

Clause 19 (3a)

Development consent must not be granted to development to which this Division applies unless the consent authority has considered whether the design of the residential development is compatible with—

(a)     the desirable elements of the character of the local area

A consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area. The SEPP (Housing) 2021 does not contain any guidance for assessing whether a proposal is compatible with the character of the local area. However, a planning principle for assessing compatibility in the urban environment was established by Senior Commissioner Roseth of the Land and Environment Court in the judgement for Project Venture Developments Pty Ltd v Pittwater Council [2005] NSWLEC 191. This involves asking the following two questions:

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

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

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

 

·    Step 1 – Identify the ‘local area’.

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

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

 

An assessment against each step is provided below:

Step 1 – Identify the local area.

This assessment identifies the local area as primarily the visual catchment of the site (defined by green outline) as viewed from within the site, directly adjacent to the site and surrounding streets, which is defined on the map below.

Figure 3 - Locality area catchment.

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

The zoning of the broader locality and immediate area comprises R4 High Density Residential, land to the south of Merrylands Road is zoned R2 Low Density Residential and land to the east (eastern side of Loftus Street) is zoned R3 Medium Density Residential under the CLEP 2021.

Present character of the area

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

1.   single storey dwellings to its northern, eastern and western boundaries,

2.   3 storey walk-up flat buildings located further to the south of Merrylands Road (60 Merrylands Road);

3.   The locality is also within the proximity of Woodville Road commercial precinct. Educational establishments and public recreation areas are located within the wider locality.

 

 

Future character of the area

The locality is in transition from lower density residential dwellings towards high density residential flat buildings and multi dwelling housing development particularly to support the increasing demand of affordable housing within the close proximity of public transport hub and major commercial centre. The transition issue is clear with regard to height and setbacks for the proposed development. It is considered that the site is ideal for future urban intensification as it is located within a high density precinct within proximity to the Merrylands Train Station and CBD and would not be inconsistent with the desired future character of the locality.

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

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

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

The height, FSR and landscaping of the proposed development are designed to maintain the harmony within the streetscape, whilst contributing to the site context and constraint.

The 11m height limit requirement is breached for part of the roof slab and the lift overrun as discussed later in the report. However, the development does not pose any unreasonable overshadowing impacts on adjoining properties. The proposal is a permissible land use, meets the FSR requirement (in accordance with SEPP (Housing)) and contributes to the provision of affordable housing within the proximity of public transport hub and major commercial centre. Appropriate setbacks and privacy treatments are provided to minimise any adverse impacts to the adjoining properties. The proposal is appropriately articulated to complement the existing and changing streetscape within the local area.  The overall design represents the form of development that is envisaged under the planning controls.

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

To be compatible, a development should contain, or at least respond to, the key aesthetic elements that make up the character of the surrounding area. The front and side setbacks are considered compatible with the existing streetscape. The proposal is considered to maintain an appropriate residential character which is consistent with the streetscape and does not result in unreasonable impacts to the neighbouring properties. As discussed above, the proposed development is not considered to be inconsistent with the existing and desired future streetscape character of the area surrounding the subject site.

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

 

As stated earlier in the report, on 14 December 2023 SEPP 65 was repealed with no savings or transitional provisions preserving the operation of State Environmental Planning Policy 65 - Design Quality of Residential Apartment Development (SEPP 65). Despite this, a comprehensive merit assessment against the SEPP 65 and Apartment

 

Design Guide (ADG) controls is contained in at Appendix B:

 

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

 

Local Environmental Plans

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

(a)     Permissibility:

The proposed development is defined as a ‘residential flat building’ under the provisions of CLEP 2021. Residential flat buildings are permitted with consent in the R4 - High Density Residential zone which applies to the land as follows:

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

Note - 

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

The 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 C.

Figure 3 - Cumberland LEP 2021 Compliance Table

(a)     Clause 4.6 - Exceptions to Development Standards

Height of Buildings

The proposal seeks to contravene the Height of Building Development Standard under Clause 4.3 of the CLEP that requires that the height of building is not to exceed 11m on the subject site.

It is noted that the residential apartment building predominantly complies with the 11m maximum building height requirement, however the only portion of the building that exceeds the maximum building height is limited to non-habitable structures including the lift over-run and concrete roof slab as shown in the 3D height planes. The architectural plans provide RLs of the NGL and finish roof level showing compliance of the habitable floor height.

The proposed building has a maximum building height of 11.65m to the top of the lift over run (5.9%) and 11.15m to the concrete roof slab (1.36%).  This equates to a maximum of 5.9% variation to the permitted height of buildings under the Cumberland LEP 2021.

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

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

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

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

Applicant’s justification:

The Applicant states the proposal is consistent with the objectives of the R4 Zone being:

·    Consistency with the objectives is evident as the proposal ensures that the high density nature of the zone is retained and there is not a significant change to the character of the locality. In addition, the proposal complements and enhances the local streetscape by virtue of the careful siting of the development.

·    The proposal presents as a 3 storey form when viewed from the street and the variation will have a minimal impact on the character of the locality.

Planner’s Comment:

Residential apartment buildings are a permitted land use and the locality is undergoing a transition particularly to support the increasing demand of affordable housing within the close proximity of public transport hub and major commercial centre. The proposed development is consistent with the objectives of the R4 High Density Residential zone.

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

Applicant’s justification:

In relation to objective (a) the minor non-compliance to the roof elements located at the rear of the building will not be perceivable from the street level where a 3 storey form is maintained. In this regard, the variation will have a minimal visual impact of the development. Further, it will not have any adverse impacts on solar access or privacy for neighbouring properties given the variation is from the roof form and that the development complies with the visual separation requirements under the ADG.

It is further noted that the breach of the development standard is a direct result of applying the affordable housing bonus under the SEPP (Housing) 2021, which permits greater FSR. Hence in the context of ‘appropriate development density’ the proposal is compliant with the FSR (having regard to the bonus for affordable housing) and the additional FSR does necessitate a minor breach to the height standard.

Planner’s comment:

The objectives of the building height standard are to enable appropriate development density to be achieved and to ensure that the height of the building is compatible with the character of the locality as outlined above. The proposal is compliant with the maximum FSR development standard inclusive of the bonus provision under the SEPP(Housing). The increased height does not result in an additional level for residential use as it comprises portion of the portions of roof slab of the 4th storey and the top of the lift core.

The departure sought is modest and does not unreasonably impact on adjoining properties. The additional height does not result in the appearance of bulk when viewed from the existing streetscape and would not impinge on the changing streetscape that is anticipated for the immediate area. Given that the proposed development responds to the site and does so without compromising relationships with adjoining development, the proposal is consistent with the objectives of height requirements and development within the R4 zone.

It shall be noted that the increased height does not result in an additional level for habitable use, as it only comprises portion of the roof slab and lift overrun.

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

Applicant’s justification:

The minor variation is not considered to impact the compatibility of the development with the character of the locality, given that the majority of the proposed building form is contained below the maximum permitted height control, and the top level which exceeds the height control is recessed to the rear of the site and will not be visible when viewing the building from the street level.

The height breach, arising from the additional permitted FSR for affordable housing, is appropriate and demonstrates environmental planning grounds through the delivery of affordable housing and this aligns directly with the Objects of the Environmental Planning and Assessment Act 1979.

Planner’s comment:

Council Officers are satisfied that the proposed variation has been appropriately justified and can be supported in this instance. The height breach is limited to an overall building height of 11.65m for the lift over run. The additional height will not be visible from the adjacent streets and properties. The proposed variation to the development standard is necessary to provide the safety features of the roof top terraces and is consistent with the scale of the development within the R4 zone located in the immediate vicinity of the site. The departure sought is modest and does not unreasonably impact on views of the heritage item or adjoining properties. Given the site topography, the additional height does not result in the appearance of bulk when viewed from the existing streetscape, would not impinge on the changing streetscape that is anticipated for the immediate area and does not result in additional overshadowing to the adjoining properties. It is considered, therefore, that the non-compliance with the Development Standard is not unreasonable or unnecessary in the circumstances of the case.

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

Applicant’s justification:

The design of the building ensures that all habitable floor spaces are 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.

Social and affordable housing reforms: The NSW Government has announced new measures to boost the supply of affordable and social housing in the state. The proposed changes include amendments to the existing in-fill affordable housing provisions under the Housing SEPP to introduce a new floor space bonus of 30 per cent and a height bonus of 30 per cent for residential developments with at least 15 per cent affordable housing. The proposed changes by the NSW government demonstrates the need for a height bonus to accompany a floor space ratio bonus. Under the proposed legislation the development would receive a 30 percent height bonus and would comply with the maximum building height requirement.

Planner’s comment:

The unique circumstances of the case are considered to warrant support of the departure. Given that the proposed development responds to the site and does so without unduly compromising relationships with adjoining development, and does not unduly compromise other relevant controls, the proposal is consistent with the objectives of building height, and development within the R4 zone. In this regard, the exception is well founded and can be supported.

Conclusion:

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

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

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

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

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

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

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

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

 

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

 

Advertised (Website)

Mail

Sign

Not Required

 

 

In accordance with Council’s notification requirements contained within the Cumberland Development Plan 2021, the proposal was publicly notified for a period of 14 days between 10 July 2023 and 24 July 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, 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 $251,595.00 would be payable prior to the issue of a Construction Certificate.

The calculation is based on:

·    3 x 1 bedroom unit

·    13 x 2 bedroom unit

·    1 x 3 bedroom unit

·    Credit of 2 x 3 bedroom (existing dwellings on subject site).

Housing and Productivity Contribution (HPC)

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, Part 9 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 19 June 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 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 Local Environmental Plan 2021, State Environmental Planning Policy (Biodiversity and Conservation) 2021, State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, Cumberland Development Control Plan 2021 and is satisfactory for approval subject to conditions.

The proposed development is appropriately located within the R4 – High Residential Density under the relevant provisions of the 2021. The proposal is generally consistent with all statutory and non-statutory controls applying to the development. 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.

There are no consultation processes for Council associated with this report.

There are no financial implications for Council associated with this report.

There are no policy implications for Council associated with this report.

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

 

 

Report Recommendation: 1.   That the Clause 4.6 variation request to contravene the Height of Building development standard, pursuant to the Cumberland LEP 2021, be supported. 2.   That Development Application 2023/0285 for demolition of existing structures and construction of a four storey residential apartment building pursuant to Chapter 2 Affordable Housing of SEPP (Housing) 2021 comprising of 17 apartments over basement parking with associated stormwater and landscaping works and strata subdivision into 17 lots on land at 45 - 47 Merrylands Road, Merrylands be approved subject to conditions listed in the attached schedule.

 

1.      Draft Notice of Determination  

2.      Appendix A - State Environmental Planning Policy - Housing 2021  

3.      Appendix B - Apartment Design Guide Assessment  

4.      Appendix C - Cumberland Local Environmental Plan 2021 Assessment  

5.      Appendix D - Cumberland Development Control Plan 2021 Assessment  

6.      Clause 4.6 Variation Request  

7.      Architectural Plans  

8.      Landscape Plans  

9.      Shadow Diagrams   

 

DOCUMENTS
ASSOCIATED WITH
REPORT LPP002/24

Attachment 1

Draft Notice of Determination

 14 February 2024

DOCUMENTS
ASSOCIATED WITH
REPORT LPP002/24

Attachment 2

Appendix A - State Environmental Planning Policy - Housing 2021

 14 February 2024

DOCUMENTS
ASSOCIATED WITH
REPORT LPP002/24

Attachment 3

Appendix B - Apartment Design Guide Assessment

 14 February 2024

DOCUMENTS
ASSOCIATED WITH
REPORT LPP002/24

Attachment 4

Appendix C - Cumberland Local Environmental Plan 2021 Assessment

 14 February 2024

DOCUMENTS
ASSOCIATED WITH
REPORT LPP002/24

Attachment 5

Appendix D - Cumberland Development Control Plan 2021 Assessment

 14 February 2024

DOCUMENTS
ASSOCIATED WITH
REPORT LPP002/24

Attachment 6

Clause 4.6 Variation Request

 14 February 2024

DOCUMENTS
ASSOCIATED WITH
REPORT LPP002/24

Attachment 7

Architectural Plans

 14 February 2024

DOCUMENTS
ASSOCIATED WITH
REPORT LPP002/24

Attachment 8

Landscape Plans

 14 February 2024

DOCUMENTS
ASSOCIATED WITH
REPORT LPP002/24

Attachment 9

Shadow Diagrams

 14 February 2024

 14 February 2024

 

Item No: LPP003/24

Development Application - Daruga Avenue, Pemulwuy

Directorate:                                       Environment and Planning

Responsible Officer:                       Executive Manager Development and Building   

 

 

1.  Development Application Number 2023/0354 for the construction of the Prospect Hill pathway to a new lookout and associated landscaping was accepted by Council on Friday 14 July 2023.

2.  The application was publicly notified to occupants and owners of the adjoining properties for a period of twenty nine (29) days between Thursday 31 August and Thursday 28 September 2023. Council received 3 submissions to the development application, however 2 are from one objector.

3.  The subject site is listed as a State heritage item within the Cumberland Local Environmental Plan 2021 being Prospect Hill - Heritage Item I01662.

4.  The development application is referred to the Panel as the development is occurring on land owned and managed by Cumberland City Council.

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

Subject Site and Surrounding Area

Prospect Hill is located at Pemulwuy and has significant heritage value. The subject site is a large irregular shaped parcel of land situated between the industrial and residential areas of Pemulwuy. 

The site comprises of four lots with the following property description:

·    Lot 202 in DP 1121844.

·    Lot 669 in DP 1148337.

·    Part Lot 901 DP 1078814 being 2 Foundation Place.

·    Part Clunies Ross Road Reserve.

The development site being that area the subject of development works has an irregular shape, occupies an area of 9,528.4 square metres and has a frontage of 60 metres to Reconciliation Rise to the south. The overall site area is considerably larger at 19,000 square metres being the wider area according to the statement of environmental effects.

While the site faces Reconciliation Rise, Council’s property rating system has the site facing Daruga Avenue.

Prospect Hill is listed as a State Heritage Item (Number I01662) within the Cumberland Local Environmental Plan 2021 due to the significance of the area to the people of the Darug nation.

The site is situated on the summit of Prospect Hill with extensive panoramic views to the north, east and west. There are extensive residential areas to the north and east while industrial and warehouse developments predominate to the northwest, west and southwest.

Extensive clearing of trees has occurred within and adjacent to the site which is a result of former activities including agricultural and pastoral activities and quarrying. As a result, the site is relatively open. Notwithstanding this, there are small trees or shrubs scattered across the area.

Key site constraints

There are key site constraints that must be considered as follows:

1.   Powerlines that cross through the site.

2.   Easements passing through the site as follows:

·    Lot 202 in DP 1121844 - Easements accommodating Endeavour Energy assets.

·    Road reserve incorporating part of Clunies Ross Street.

3.   The site is identified as being bushfire prone possessing both Vegetation Buffer and Vegetation Category 3 lands as per the relevant mapping.

It is noted that the western part of the site is in private ownership. However, landowner consent has been submitted by the relevant party which authorises the making of the development application.

Vehicle access to the area is limited with the only parking area available along Reconciliation Rise and Butu Wargun Drive. The site has been cordoned off to prevent unauthorised access to the hilltop and to prevent antisocial activities occurring across the area.

The location of the site is shown below with the general allotments affected by the development outlined in purple with the development site the subject of the works outlined in red.

The land zoning map under the Cumberland Local Environmental Plan 2021 is outlined below. There are two land parcels not zoned under the local planning instrument. Instead, the two parcels are zoned IN1 General Industrial under State Environmental Planning Policy (Industry and Employment) 2021 Chapter 2 - Western Sydney Employment Area.

It is also identified that a small portion of the site within Lot 202 in DP 1121844 with dimensions of approximately 4 metres x 12 metres is not zoned under the relevant planning instruments that apply to the site.

Photos of the site taken Sunday 27 August 2023 are attached below.

 

Description of The Development

Prospect Hill is listed on the State Heritage Register as an item of State Heritage Significance. The current condition of the park does not represent the significance of the site and area and upgrade works are essential to permit the site to be properly used.

On Wednesday 20 March 2019, Cumberland City Council adopted the “Prospect Hill Plan of Management” that provides for the framework for managing the land and outlines how the land is intended to be used, improved then maintained for the future.

The Plan of Management incorporated a Landscape Masterplan to illustrate the proposed improvements to the site and to facilitate the establishment of facilities for the users of the land (Page 62).

The Plan of Management has been prepared with extensive consultation and engagement with the local community and Aboriginal stakeholders.

The proposed development that forms the development application represents an initial development in the delivery of the broader Landscape Masterplan. The initial development focusses upon the area from Reconciliation Rise to the summit of Prospect Hill. It is expected that future development applications will be lodged for future development to permit the Masterplan to be fulfilled.

The Plan of Management is attached to the report for the consideration of the Panel.

The development application is consistent with the Plan of Management and proposes the following works:

·    Establish a walking track along the ridgeline between the lookout at Prospect Hill and Reconciliation Rise.

·    Construct unobtrusive viewing areas at Prospect Hill, looking south-east using low maintenance materials.

·    Construct new pathways that are 2.5 metres wide to provide access to the “events and performance spaces, look out and summit knoll area.

·    Provide seating at entry points, along pathways and at viewing points and provide a future ceremonial plaza and event space.

·    Provide a low key and secure perimeter at the Reconciliation Rise entry to restrict existing unauthorised vehicle entry from that location.

·    Removal of existing vegetation to allow for construction works to proceed.

 

Proposed Layout

 

The proposed layout is demonstrated as follows:

·   A single shared path provides access to Prospect Hill from Reconciliation Rise.

·   The pedestrian path to the lookout sweeps around a performance area and follows the contours of the hill up to the Ceremonial Plaza.

·   The path then switches back to a landing which intersects with the stairs and sweeps on up to the base of the knoll.

·   The path meets the ridgeline path at the base of the hill which wraps around the base of the knoll to the lookout.

·   To the south of the knoll, a lookout platform is provided with topo scope signage and bench seating.

·   In addition to the path, a stair access connects Reconciliation Rise to the performance space and a set of stairs connects the performance space to the base of the knoll.

·   The site will be subjected to landscaping corresponding to site conditions and will be fenced off to prevent unauthorised access.

New building works

The following works are required:

·    The entry area of Reconciliation Rise will be represented as a stone clad feature wall with place name signage, a gated entry with secure fencing and bench seating, drinking fountain and bin located outside the secure perimeter.

·    The fencing and gate at this location will be a steel palisade type product and the space behind this entry area will be provided with feature basalt boulders.

·    The pathways will be a mix of at-grade concrete finishes at the lower and upper levels of the site and elevated mesh to steel, walkways through the site midsections.

·    The stairs are also provided with a concrete finish and the landings at these spaces will be an exposed aggregate finish.

·    Galvanised hand rails are also provided to the stairs, elevated pathways and ramps together will tactile ground surface indicators at all required locations.

·    Low retaining walls along the pathways can also perform a seating role to allow users to rest and contemplate views and the broader site experience including the event space and future ceremonial area.

·    The lookout will feature an elevated platform of mesh to steel and will feature bench seating and steel balustrades along its perimeter.

Operations and Management

Prospect Hill is currently visited by various users including Aboriginal groups and school groups as part of teaching Aboriginal history and culture. It is also an important venue to the Aboriginal community for the annual NAIDOC Week and Reconciliation Day (3 May) events.

The development proposal is therefore only seeking to accommodate the existing activities and user groups and particularly the Aboriginal communities in a more functional manner that recognises and respects the cultural importance of the site.

Further, it is not intended as part of the initial stage of the development to attract more intensive or frequent use of the site. Generally only Council organised events will be taking place within the area. The Council events will be “invitation only” to the relevant user groups. 

Access from Reconciliation Rise will therefore be restricted by the electronic gate and secure perimeter and access will be on a need only basis and formally requested basis through Council. On the days of events, the gates will be opened either electronically or by Council rangers between the hours of 6 am and 6 pm. At all other times, the area will remain closed to the general public. The practice will occur until the embellishment of the broader site is complete that will allow more public use.

History

A pre lodgement meeting was held with Council officers on Tuesday 30 May 2023 with the pre lodgement minutes being issued shortly after.

The development application was accepted by Council on Friday 14 July 2023 for determination.

Applicants Supporting Statement

The applicant has provided a Statement of Environmental Effects prepared by Cityscape Planning and Projects which is dated June 2023.

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

Aboriginal Engagement and Programs

The development application was referred to Council’s Aboriginal Engagement and Programs Officer for comment in relation to the Aboriginal Cultural Heritage Assessment Report submitted by Apex Archaeology. As per the comments of Thursday 5 October 2023, no objections are raised to the development application. Furthermore, there are no conditions recommended for any consent that may be issued.

Development Engineering

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

Environment and Health

The development application was referred to Council’s Environment and Health Officer for comment who has advised that the development proposal is unsatisfactory on the grounds that an acoustic report was not submitted to address any events occurring at the ceremonial area. However, there is no objection overall to the development and conditions are provided.

It should be noted that events when they do occur are seldom in nature and attracting very limited numbers within an area that is not located near residents. It is considered that an acoustic report is not required. However, the applicant will be required to submit a plan of management addressing how noise from any events held at the lookout are minimised / mitigated. This is addressed at draft Condition 7 for Panel consideration.

Parks and Open Space

The development application was referred to Council’s Parks and Open Space Department for assessment. As per advice of Tuesday 5 September 2023:

·    The proposal is consistent with the plan of management and delivers on what the plan seeks to undertake.

·    The proposal is consistent with the objectives of the plan of management.

·    The planting scheme is appropriate for the location and the planting aligns with the relevant objectives for regeneration of the site.

·    The recommendations made in the accessibility report should be included into any consent issued.

No conditions are provided given the proposal being consistent with the Plan of Management for the site.

Property / Governance and Risk

The development application was referred to Council’s Property, Governance and Risk Department. No objections were received in relation to the development application.

Tree Management

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

Waste Management

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

External Referrals

Endeavour Energy

Endeavour Energy has provided conditions addressing relevant concerns in relation to easements. All relevant conditions are included into the recommendation for Panel consideration.

Office of Environment and Heritage (Heritage)

The development application was initially considered as being Integrated Development and requiring a General Terms of Approval pursuant to Section 90 of the National Parks and Wildlife Act 1974 and Section 58 of the Heritage Act 1977.

As per correspondence of Friday 22 December 2023, there is no harm to Aboriginal objects arising from the development and an Aboriginal Heritage Impact Permit is not required. The development is not integrated development, and no general terms of approval is required. However general conditions are provided for any consent that may be issued.

New South Wales Police - Cumberland Local Area Command

The development application was referred to New South Wales Police - Cumberland Local Area Command for review. As per the comments of Tuesday 29 August 2023, the development application is supported subject to conditions.

Planning Comments

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

State Environmental Planning Policies

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

 

Local Environmental Plans

Cumberland Local Environmental Plan 2021

The provision of the Cumberland Local Environmental Plan 2021 is applicable to that part of the development occurring across Lot 202 in DP 1121844 and Lot 669 in DP 1148337. The development across the land parcels and different zonings achieves compliance with the key statutory requirements of the Cumberland Local Environmental Plan 2021 and the objectives of the following zones:

·   C2 - Environmental Conservation Zone for Lot 202 in DP 1121844.

·   RE1 - Public Recreation Zone for Lot 669 in DP 1148337.

Note: A small portion of land on Lot 202 in DP 1121844 does not have any zoning under any planning instrument with the area affected by between 48 and 60 square metres. Given the wording of Clause 2.4 of the Cumberland Local Environmental Plan 2021 which reads as:

Unzoned land

(1)     Development may be carried out on unzoned land only with development   consent.

(2)     In deciding whether to grant development consent, the consent authority—

(a)   must consider whether the development will impact on adjoining zoned land and, if so, consider the objectives for development in the zones of the adjoining land, and

(b)   must be satisfied that the development is appropriate and is compatible with permissible land uses in any such adjoining land.

Council officers may consider the development across the affected area under Subclause 2(a) and 2(b) and apply the provisions accordingly as part of the assessment.

(a)     Permissibility:

The proposed development as demonstrated by the Statement of Environmental Effects is defined as a Recreation Area which is defined as:

recreation area means a place used for outdoor recreation that is normally open to the public, and includes—

(a) a children’s playground, or

(b) an area used for community sporting activities, or

(c)  a public park, reserve or garden or the like, and any ancillary buildings, but does not include a recreation facility (indoor), recreation facility (major) or recreation facility (outdoor).

A recreation area is a permissible development with consent across both zones. Coupled with the permissibility that is achieved for the IN1 General Industrial zone under State Environmental Planning Policy (Industry and Employment) 2021 - Chapter 2 Western Sydney Employment Area, it is considered that the development across all four allotments is permissible with consent.

Given this finding, it is considered that the proposed development is permitted across that part of Lot 202 in DP 1121844 that is not zoned under any of the planning instruments that apply to the site.

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.

Cumberland LEP 2021 Compliance Table

DEVELOPMENT STANDARD	COMPLIANCE	DISCUSSION
4.3 Height of Buildings.	N/A	No building height requirements apply to the site and no formal buildings are to be constructed.
4.4 Floor Space Ratio.	N/A	No floor space ratio requirements apply to the affected land and no floor space ratio is generated by the proposed works.

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 needs to be considered for the purpose of the development application.

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

The Cumberland Development Control Plan 2021 is relevant to the development proposal and the development has been assessed using the relevant controls. The development is found to comply with the relevant provisions. A detailed assessment is provided at Appendix C attached to the report for clarity.

Car parking requirements

A car park is not proposed to service the development and there are no car parking requirements for such developments. Council engineers have supported the development with conditions without the need for a car park.

The applicant has advised in a written statement dated Friday 20 October 2023 that given the State Heritage significance of the subject site, there is no likelihood that the Office of Environment and Heritage would issue an approval to a development proposal that sought to include a car park on the subject site.

On Page VI and VII of the Plan of Management, the Masterplan for the Prospect Hill area is suggesting the development of car parking with access from Clunies Ross Drive especially once the entire hill is developed to its full potential. The plan is not suggesting on site car parking to service the initial stages of the Prospect Hill redevelopment.

The development of future car parking is situated on another part of the site that does not form part of the current development application.

On this basis and, given that there is a long term masterplan in place for the hill, including the development of a future car park to service the area for the long term, the proposal to rely on the street car parking within the vicinity of the entry to the site is considered to be 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 Regulations 2021 (EP&A Reg).

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

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

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

The site is identified as being bushfire prone on the relevant Council bushfire prone areas map. As per the requirements of Clause 4.14 of the Environmental Planning and Assessment Act 1979, Council cannot consent to development unless it demonstrates that it conforms to the specifications and requirements of Planning for Bushfire Protection 2019 prepared by the NSW Rural Fire Service.

As demonstrated by the documents submitted, the site is not located close to major bushland areas and the bushfire prone status is largely related to smaller vegetation areas and grasses located across the site.

The development application is not proposing any buildings and there is no permanent onsite occupation occurring. In addition, the grasses and vegetation will be removed as part of the works which in turn will reduce any fire hazard.

The relevant legislation has been considered and it is determined that formal referral to the New South Wales bushfire brigade is not required because a building is not proposed.

It is considered that the development is suitable in the context of the site and surrounding locality and is consistent with the Prospect Hill Plan of Management dated March 2019.

 

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 twenty nine (29) days between Thursday 31 August and Thursday 28 September 2023. During the notification period, Council received 3 submissions. The issues raised in the public submissions are summarised and commented on as follows:

 

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

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

Cumberland Local Infrastructure Contributions Plan 2020

As per advice received from Council’s Senior Contributions Advisor dated Wednesday 23 August 2023, a contribution is not payable for the development on the grounds that this is a Council development application.

Housing and Productivity Contribution (HPC)

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 Schedule 6, part 9, 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.

The contribution would not apply to such an application for a lookout and associated pathways.

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 following zones:

·   C2 - Environmental Conservation Zone for Lot 202 in DP 1121844.

·   RE1 - Public Recreation Zone for Lot 669 in DP 1148337.

Under the Cumberland Local Environmental Plan 2021.

·   IN1 General Industrial for Clunies Ross Road Reserve and Lot 901 in 1078814 being 2 Foundation Place.

Under State Environmental Planning Policy (Industry and Employment) 2021 Chapter 2 - Western Sydney Employment Area.

The proposal is generally consistent with all statutory and non-statutory controls applying to the development. The development is considered to perform adequately in terms of its relationship to its surrounding built and natural environment, particularly having regard to impacts on adjoining properties.

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

 

 

 

Report Recommendation: 1.   That Development Application 2023/0354 on land at Lot 202 in DP 1121844, Lot 669 in DP 1148337, Part Lot 901 in DP 1078814 being 2 Foundation Place Pemulwuy and Part Clunies Ross Road Reserve for Construction of Prospect Hill pathway to lookout and associated landscaping be approved subject to conditions as provided in the attached Schedule. 2.   Persons whom have lodged a submission in respect to the application be notified of the determination of the application.

 

1.      Draft Notice of Determination  

2.      Architectural Plans  

3.      Stormwater/Engineering Plans  

4.      Redacted Submissions  

5.      Cumberland City Council Prospect Hill Plan of Management March 2019 (Includes the Landscape Master Plan details)  

6.      Appendix A - State Environmental Planning Policy (Industry and Employment) 2021 Assessment Table  

7.      Appendix B - Cumberland Local Environmental Plan 2021 Assessment Table  

8.      Appendix C - Cumberland Development Control Plan 2021 Assessment Table   

 

DOCUMENTS
ASSOCIATED WITH
REPORT LPP003/24

Attachment 1

Draft Notice of Determination

 14 February 2024

DOCUMENTS
ASSOCIATED WITH
REPORT LPP003/24

Attachment 2

Architectural Plans

 14 February 2024

DOCUMENTS
ASSOCIATED WITH
REPORT LPP003/24

Attachment 3

Stormwater/Engineering Plans

 14 February 2024

DOCUMENTS
ASSOCIATED WITH
REPORT LPP003/24

Attachment 4

Redacted Submissions

 14 February 2024

DOCUMENTS
ASSOCIATED WITH
REPORT LPP003/24

Attachment 5

Cumberland City Council Prospect Hill Plan of Management March 2019 (Includes the Landscape Master Plan details)

 14 February 2024

DOCUMENTS
ASSOCIATED WITH
REPORT LPP003/24

Attachment 6

Appendix A - State Environmental Planning Policy (Industry and Employment) 2021 Assessment Table

 14 February 2024

DOCUMENTS
ASSOCIATED WITH
REPORT LPP003/24

Attachment 7

Appendix B - Cumberland Local Environmental Plan 2021 Assessment Table

 14 February 2024

DOCUMENTS
ASSOCIATED WITH
REPORT LPP003/24

Attachment 8

Appendix C - Cumberland Development Control Plan 2021 Assessment Table

 14 February 2024

 14 February 2024

 

Item No: LPP004/24

Development Application - 5 Cumberland Road, Auburn

Directorate:                                       Environment and Planning

Responsible Officer:                       Executive Manager Development and Building   

 

 

1.  Development Application No. DA2023/0519 was accepted on 19 September 2023 for the construction of a secondary dwelling under State Environmental Planning Policy (Housing) 2021 at 5 Cumberland Road Auburn NSW  2144.

2.  The application was publicly notified to occupants and owners of the adjoining properties for a period of 14 days between 6 October 2023 and 20 October 2023. In response, nil (0) submissions were received.

3.  The variations are as follows:

 

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

5.  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 41 Sec B DP 3850 and is known as 5 Cumberland Road AUBURN NSW  2144. The site has an area of 392m2 and a frontage to Cumberland Road of 10.06m. The site is relatively flat in topography. 

A site inspection of the premises was carried out on 21 December 2023, and it was confirmed that the site is currently occupied by a single storey dwelling, with ancillary attached and detached structures including a detached metal carport structure within the front setback, and a detached metal shed at the rear. The existing structures on site appear to have been built before the year of 1949 in accordance with Council’s records. No trees are located within the subject site. There are two (2) trees located in front of the subject site, on council’s nature strip. The site is not identified as a flood affected lot. A Sydney water sewer traverses the site towards the rear.

The existing developments adjoining the site include single storey dwelling developments with ancillary detached structures to the rear. The area consists of predominately low-density residential buildings, inclusive of one and two storey dwellings, secondary 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: Rear of the subject site

Description of Proposal

Council received development application DA2023/0519 on 19 September 2023 seeking approval for construction of a secondary dwelling under SEPP Housing 2021. The detailed breakdown of the proposal is shown below:

Construction of:

 

·    A single storey detached secondary dwelling consisting of:

-     A porch/entry;

-     Open Living / Dining area;

-     Kitchen/Laundry area;

-     Two (2) bedrooms; and

-     Bathroom/ensuite (servicing Bed 1)

Site History

No relevant or recent Environmental Planning and Assessment Act 1979 (EPA) orders or relevant historical approvals for the subject site.

Note: Council’s records indicate that the existing primary dwelling was built prior to the year of 1949. Documentary evidence relating to Miscellaneous Property Matters dated 7/01/1988 has been located within Council’s system displaying the existing carport structure located within the front setback.

Applicants Supporting Statement

The applicant has provided a Statement of Environmental Effects dated August 2023 in support of the application.

The applicant has also submitted a Clause 4.6 statement prepared by Camille Lattouf from Little Developer Co. dated 21 November 2023 which was received by Council on 22 November 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

Not Applicable. No internal referrals were required for this development application.

External Referrals

Sydney Water Corporation

Due to the presence of a sewer line traversing through the rear of the site the development application was referred to the Sydney Water Corporation for comments. Advice has been received by the relevant government authority (Sydney Water) on 23 October 2023. Sydney Water did not raise any objections to the proposed development subject to the recommended conditions including Sydney Water ‘Tap In’ Building Plan, Out of Scope Building Plan Approval and General Tree Planting Requirements.

Planning Comments

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

State Environmental Planning Policies

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

State Environmental Planning 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 requirement of 450m2 for a detached secondary dwelling as required by Clause 53(2)(a) of State Environmental Planning Policy (Housing) 2021. The subject lot has a site area of 392m2 which varies the standard by 58m2, equating to a 12.89% 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 for the purpose of a secondary dwelling, which is consistent with the suburban, low-density development usually permitted within the R2 Low Density Residential zone. The proposed development and lot size non-compliance raises no inconsistencies with the objectives of the R2 zone given it proposes a permissible land use and will contribute to the provision of local and affordable rental housing. It will not result in any conflict with the adjoining properties such as overshadowing, privacy, solar impacts and view impacts. Furthermore, the proposal is not visible from the streetscape and does not detract from the character of the urban fabric.

Planner’s comment:

The proposal has been designed to positively contribute to the housing needs within the community and maintains adequate essential services and amenities. The proposal is consistent with the zone objectives, and complies with the permitted use of residential housing, due to its ability to help sustain the community’s housing needs.

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

As no objectives are explicitly mentioned, the proposed development is to follow the principles of the SEPP (Housing) 2021. This is due to be being classified as a “development standard” as defined in section 1.4 of the Environmental Planning and Assessment Act. Clause 53 is not a development standard that has been expressly excluded from the operation of Clause 4.6. Accordingly, the principles of the SEPP (Housing) 2021 are as follows:

3.   Principles of Policy

The principles of this Policy are as follows:

 

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

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

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

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

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

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

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

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

Applicant’s justification:

The non-compliance with the Housing SEPP Minimum Lot Size control for secondary dwellings for the purpose of achieving appropriate housing needs is supported by the Cumberland Council Development Control Plan 2021. Furthermore, the proposed development aims to achieve the objects of the EP&A Act, including:

 

·    Object of the EP&A Act to promote the orderly and economic use and development of land through the provision of housing in an appropriately zoned location,

·    Object of the EP&A Act to promote good design and amenity of the built environment,

·    Deliver more housing consistent with the Priorities of the Cumberland Council and its local housing strategy,

·    Achieving the objectives of the Greater Sydney Region Plan 2018 and the Central City District Plan regarding the provision of housing supply, choice, and affordability in the right locations.

Despite the non-compliance with the standard, the proposed development will have a negligible impact on the surrounding development with respect to overshadowing, views, visual impact, and privacy due to the appropriate and considerate design of the secondary dwelling.

 

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. 

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

Applicant’s justification:

The applicant maintains that in this instance, compliance with the lot size standard is considered unnecessary as the proposal is complementary to the existing character of the locality and is permissible under Council’s DCP controls. The impacts of the proposed development are not greater than an otherwise strictly complying development. Therefore, it is considered that the proposed variation is not a major departure from the controls, or the desired development outcome envisaged by the planning controls.

The applicant proceeds to argue the following matters:

 

·    With respect to the subject site, compliance with the 450sqm minimum lot size for a secondary dwelling standard is considered unnecessary in this case because the proposed development complies with the objectives of the subject development standard set by Council. The objectives of the development standards and the five tests under Wehbe v Pittwater Council have been addressed.

·    The development is considered to have sufficient environmental planning grounds given the development complies with the objectives of the development standards and has no environmental impacts beyond what would be expected of a strictly complying development. It is also consistent with Council’s minimum lot size of 380sqm.

·    The development will be in the public interest because it raises no inconsistencies with the objectives of the R2 zone and complies with the objectives of the development standard and Council’s DCP objectives for the comparable control. The proposed development is a permissible land use under the Housing SEPP, will contribute new affordable rental housing options and has been designed to minimise any conflict with the adjoining properties such as overshadowing, privacy, sunlight impacts and view impacts.

·    The case also identifies that the outcome of the breach to a development standard does not necessarily need to be a neutral or better outcome, if the relevant environmental planning grounds to assess it against don't require such.

·    With regard to bulk and scale, overshadowing, visual impact, and privacy the objective of the development standard is to maintain the prevailing suburban, low density character and amenity by limiting the height and scale of secondary dwelling development. The proposed development is otherwise consistent with these controls, including Council’s comparable control of 380sqm as a minimum lot size.

Planner’s comment:

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:

The site is identified within the R2 Low Density Residential zoning under the Cumberland LEP 2021.

Development for the purposes of a ‘secondary dwellings’ are permitted under the Housing SEPP, as it is within the R2 zone under the Cumberland LEP 2011, a prescribed zone.

As set out by Clause 53(2) of the Housing SEPP, the minimum lot size for a secondary dwelling is 450sqm, contrary to Council’s control, to which this proposal complies, of 380sqm.

The proposed development is comprised of one secondary dwelling development at the rear of the existing property.

The applicant proceeds to argue that there are sufficient environmental planning grounds to justify contravening standards:

 

·    Cumberland Council does not provide any more onerous standards, but rather has a Development Control Plan provision (Part B, Clause 2.21, C7, Cumberland DCP 2021) which permits secondary dwellings that are detached on lots that are at least 380sqm. The proposed lot size is consistent with this control, and therefore Council’s intent for where secondary dwellings are appropriate.

·    The proposed development is considered to be in the public interest by increasing the supply of affordable secondary housing in a well-established location with good connectivity to services, transport and employment. Furthermore, the proposal is appropriately designed to ensure minimal significant or adverse impacts on the locality or adjacent properties. The proposal achieves the relevant controls under the Cumberland DCP 2021 and is therefore consistent with the relevant housing strategies and complies with the objectives of the Clause. Below are the relevant objectives under the DCP and the zone.

·    The proposed secondary dwelling design is appropriately integrated into the property, and is of a scale, size and design that is subservient to the existing primary dwelling. The proposal does not detract from the amenity of neighbouring dwellings. The functionality of the proposed development is not compromised by this non-compliance.

·    The proposed development is for the purpose of a secondary dwelling, which is consistent with the suburban, low-density development permitted within the R2 Low Density Residential zone.

·    The proposed development, and lot size non-compliance, raises no inconsistencies with the objectives of the R2 zone given it proposes a permissible land use, and will contribute to the provision of local and affordable rental housing. It will not result in any conflict with the adjoining properties such as overshadowing, privacy, solar impacts and view impacts. Furthermore, the proposal is not visible from the streetscape, and does not detract from the character of the urban fabric.

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. 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 CDCP2021, 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 Lot to be appropriate in size (392m2) 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 as 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 ‘secondary dwelling’. It is noted that secondary dwellings are not permissible under the LEP. However, 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) 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 in full.

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).

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

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

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

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

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

In accordance with Council’s Notification requirements contained within the Cumberland Development Control Plan 2021, the proposal was publicly notified for a period of 14 days between 6 October 2023 and 20 October 2023. As a result of the public exhibition of the application, Council received nil (0) submissions.

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

It is considered that the development 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 $10,625.00 would be payable prior to the issue of a Construction Certificate.

Housing And Productivity Contribution (HPC)

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 19 September 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 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, and Cumberland DCP 2021, 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.

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.

There are no consultation processes for Council associated with this report.

There are no financial implications for Council associated with this report.

There are no policy implications for Council associated with this report.

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

 

 

Report Recommendation: 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. DA2023/0519 for construction of a secondary dwelling under SEPP Housing 2021 on land at 5 Cumberland Road AUBURN be Approved subject to conditions listed in the attached schedule.

 

1.      Draft Notice of Determination  

2.      Architectural Plans  

3.      Clause 4.6 Variation  

4.      Appendix A - Cumberland LEP Assessment Table  

5.      Appendix B - Cumberland DCP Assessment Table   

 

DOCUMENTS
ASSOCIATED WITH
REPORT LPP004/24

Attachment 1

Draft Notice of Determination

 14 February 2024

DOCUMENTS
ASSOCIATED WITH
REPORT LPP004/24

Attachment 2

Architectural Plans

 14 February 2024

DOCUMENTS
ASSOCIATED WITH
REPORT LPP004/24

Attachment 3

Clause 4.6 Variation

 14 February 2024

DOCUMENTS
ASSOCIATED WITH
REPORT LPP004/24

Attachment 4

Appendix A - Cumberland LEP Assessment Table

 14 February 2024

DOCUMENTS
ASSOCIATED WITH
REPORT LPP004/24

Attachment 5

Appendix B - Cumberland DCP Assessment Table

 14 February 2024

 14 February 2024

 

Item No: LPP005/24

Development ApplicaTion - 11 Moree Avenue, Greystanes

Directorate:                                       Environment and Planning

Responsible Officer:                       Executive Manager Development and Building   

 

 

1.  Development Application No. DA2023/0591 was accepted on 10 October 2023 for the partial demolition and rear extension of existing heritage listed dwelling with attached carport.

2.  The application was publicly notified to occupants and owners of the adjoining properties for a period of 14 days between 19 October 2023 and 2 November 2023. In response, one submission in support of the subject application was received.

3.  The application was publicly re-notified to occupants and owners of the adjoining properties for a period of 7 days between 29 November 2023 and 6 December 2023 due to the provision of amended plans. In response, no submissions were received.

4.  The subject site is listed as a heritage item of local significance and is located within the Toohey’s Palm Estate Group conservation area in the Cumberland Local Environmental Plan 2021 as Heritage Item no. I301. The heritage item is a Girraween, Inter-war bungalow.

5.  The application is referred to the Panel as the proposal is considered to be contentious / sensitive development involving partial demolition of the rear of an existing dwelling of heritage significance, to facilitate a new rear extension.

 

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

Subject Site And Surrounding Area

The site forms Lot 132 in DP 13731 and is known as 11 Moree Avenue, Westmead. The site has an area of 645 square metres and has a frontage to MOREE AVENUE of 15.24m. The site has a fall of approximately 1.12m from front to rear.

A site inspection of the premises carried out on 18 October 2023 confirmed that the site is currently occupied by a one storey single dwelling, a detached garage and 4 trees.

The existing developments adjoining the site include detached single dwellings to the north, east and west and a school to the south.

The site contains a heritage item (No. I301), that being the Girraween, Inter-war bungalow. The house was built in 1928 and directly relates to the “Toohey’s Palm Estate Subdivision and contains evidence of the pattern of residential development in the suburb of Westmead and within the broader Cumberland LGA. The building is aesthetically significant since the dwelling is largely an intact Inter-war Bungalow that makes a significant contribution to the character of the streetscape.

Figure 1 – Locality Plan of subject site

Figure 2 – Aerial view of subject site

Figure 3 – Street view of subject site 11 Moree Avenue Westmead

Figure 4 – Backyard of subject site as viewed from existing dwelling.

Description of The Development

Council has received a development application for partial demolition and rear extension of existing heritage listed dwelling with attached carport. which comprises of the following:

Demolition of the following structures:

 

·    rear of the existing dwelling consisting of the rear veranda and the skillion roof directly above,

·    1 existing tree, and

·    existing detached garage.

Alterations and additions to the rear of existing dwelling, which comprises of the following:

 

·    2 additional bedrooms,

·    1 additional bathroom,

·    A new kitchen/dining/family area,

·    A patio to the rear consisting of bbq area, and

·    An attached carport on the western elevation of the proposed extension.

 

Applicants Supporting Statement

The applicant has provided a Statement of Environmental Effects prepared by Minto Planning Services dated 22 September 2023 and was received by Council on 25 September 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 Engineering

The development application was referred to Council’s Development Engineer for comments who has advised that the development proposal is satisfactory as the proposed development will not result in adverse flooding impacts to the subject site and adjoining properties and therefore can be supported subject to the recommended conditions of consent.

Building Surveying

The development application was referred to Council’s Building Surveyor for comments who has advised that the development proposal is satisfactory as the proposed development complies with the relevant provisions of the National Construction Code 2019 and therefore can be supported subject to the recommended conditions of consent.

Tree Management

The development application was referred to Council’s Tree Management Officer for comments who has advised that the development proposal is satisfactory as the proposed development does not result in adverse unreasonable impacts to any adjacent trees and therefore can be supported subject to the recommended conditions of consent.

Planning Comments

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

State Environmental Planning Policies

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

 

 

Local Environmental Plans

Cumberland Local Environmental Plan 2021

The provision of the Cumberland Local Environmental Plan 2021 is applicable to the development proposal. It is noted that the development achieves compliance with the key statutory requirements of the Cumberland Local Environmental Plan 2021 and the objectives of the R2 Low Density Residential Zone.

(a)     Permissibility:

The proposed development is defined as alteration and additions to a “Dwelling House” and is permissible in the R2 Low Density Residential Zone with consent.

“Dwelling House means a building containing only one dwelling”.

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 A.

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 2021 is relevant to the development proposal.

The development has been assessed against the following chapters:

 

·    B1: Single Dwellings and Secondary Dwellings

·    G2: Heritage

·    G3: Traffic, Parking, Transport and Access (Vehicle)

·    G4: Stormwater and Drainage

·    G5: Sustainability, Biodiversity and Environmental Management

·    G7: Tree Management and Landscaping

·    G8: Waste Management

The proposed development complies with the provisions of Council’s Cumberland DCP 2021 and is considered acceptable from an environmental planning view point.

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

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

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

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

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

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

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

In accordance with Council’s notification requirements contained within the Cumberland DCP 2021, the proposal was publicly notified for a period of 14 days between 19 October 2023 and 2 November 2023. The notification generated one submission in respect of the proposal. The issues raised in the public submissions are summarised and commented on as follows:

In accordance with Council’s Notification requirements contained within the Cumberland DCP 2021, the proposal was publicly re-notified for a period of 7 days between 29 November 2023 and 6 December 2023 due to amendments to the proposed plans. The notification generated no submissions.

Heritage Committee

The Heritage Committee was notified of the Development Application for comment who has made no objection to the proposal.

Submissions summary table

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

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

Cumberland Local Infrastructure Contributions Plan 2020

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

Housing And Productivity Contribution (HPC)

In accordance with Schedule 2 of the Order, the proposed development is exempt from the HPC as DA2023/0591 is seeking consent for partial demolition and rear extension of existing heritage listed dwelling with attached carport.

The development application has been assessed in accordance with the relevant requirements of the Environmental Planning and Assessment Act 1979, State Environmental Planning Policy (Biodiversity and Conservation) 2021, State Environmental Planning Policy (Resilience and Hazards) 2021, State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, State Environmental Planning Policy (Sustainable Buildings) 2022, Cumberland LEP and Cumberland DCP and is considered to be satisfactory for approval, subject to conditions.

The proposed development is appropriately located within the R2 Low Density Residential Zone under the relevant provisions of the Cumberland LEP. The proposal is consistent with all statutory and non-statutory controls applying to the development. The development is considered to perform adequately in terms of its relationship to its surrounding built and natural environment, particularly having regard to impacts on adjoining properties.

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

There are no consultation processes for Council associated with this report.

There are no financial implications for Council associated with this report.

There are no policy implications for Council associated with this report.

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

 

Report Recommendation: 1.   That Development Application No. DA2023/0591 for partial demolition and rear extension of existing heritage listed dwelling with attached carport at 11 Moree Avenue WESTMEAD NSW  2145 be Approval subject to conditions listed in the attached schedule. 2.   Persons whom have lodged a submission in respect to the application be notified of the determination of the application.

 

1.      Draft Notice of Determination  

2.      Architectural Plans  

3.      Submissions Received  

4.      Cumberland LEP Assessment  

5.      Cumberland DCP Assessment  

6.      Heritage Impact Statement  

7.      Flood Impact Study  

8.      BASIX Certificate   

 

DOCUMENTS
ASSOCIATED WITH
REPORT LPP005/24

Attachment 1

Draft Notice of Determination

 14 February 2024

DOCUMENTS
ASSOCIATED WITH
REPORT LPP005/24

Attachment 2

Architectural Plans

 14 February 2024

DOCUMENTS
ASSOCIATED WITH
REPORT LPP005/24

Attachment 3

Submissions Received

 14 February 2024

DOCUMENTS
ASSOCIATED WITH
REPORT LPP005/24

Attachment 4

Cumberland LEP Assessment

 14 February 2024

DOCUMENTS
ASSOCIATED WITH
REPORT LPP005/24

Attachment 5

Cumberland DCP Assessment

 14 February 2024

DOCUMENTS
ASSOCIATED WITH
REPORT LPP005/24

Attachment 6

Heritage Impact Statement

 14 February 2024

DOCUMENTS
ASSOCIATED WITH
REPORT LPP005/24

Attachment 7

Flood Impact Study

 14 February 2024

DOCUMENTS
ASSOCIATED WITH
REPORT LPP005/24

Attachment 8

BASIX Certificate

 14 February 2024