9 October 2024

A meeting of the Cumberland Local Planning Panel will be held at 11.30am via Electronic Determination on Wednesday, 9 October 2024.

Business as below:

Yours faithfully

Peter J. Fitzgerald

General Manager

ORDER OF BUSINESS

1.      Receipt of Apologies

2.      Declarations of Interest

3.      Address by invited speakers

4.      Reports:

          -        Development Applications

5.      Closed Session Reports

 

 9 October 2024

CONTENTS

Report No.  Name of Report                                                                                         Page No.

Development Applications

ELPP029/24 Development Application - 56 Mona Street, Auburn...................................... 5

ELPP030/24 Development Application - 77-85 Station Road, Auburn............................. 85

ELPP031/24 Development Application - 149 Auburn Road, Auburn.............................. 321

ELPP032/24 Development Application - Church Street, Lidcombe................................ 425

 

 9 October 2024

Item No: ELPP029/24

Development Application - 56 Mona Street, Auburn

Directorate:                                       Environment and Planning  

Responsible Officer:                       Executive Manager City Planning and Development   

 

 

1.  Development Application No. DA2024/0171 was accepted on 17 June 2024 for the Alterations and additions to existing shed for use as a secondary dwelling. Due to non-compliances with Cumberland Development Control Plan 2021 and the BCA, the proposal could not be supported.  The proposal was subsequently amended to demolish the existing shed and construct a secondary dwelling.

2.  The application was publicly notified to occupants and owners of the adjoining properties for a period of 14 days between 26 June 2024 and 10 July 2024. In response, no 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.  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 15 in DP 5458 and is known as 56 Mona Street, Auburn NSW  2144. The site has an area of 404.7 square metres and a frontage to Mona Street of 10.06m. The site has a fall of approximately 270mm from rear to front.

The existing developments adjoining the site include single dwellings of varying ages to the north, south, east and west.

Figure 1 – Locality Plan of subject site

Figure 2 – Aerial view of subject site

 

Figure 3 – Street view of subject site (Source: google maps)

Figure 4 – view of existing shed proposed to be demolished to make way for a secondary dwelling

 

Description of The Development

Council has received a development application for the demolition of the existing shed and the construction of a secondary dwelling, which consists of:

·    2 bedrooms

·    1 bathroom

·    A laundry

·    A living area

·    A kitchen area

·    A laundry

The DA originally proposed alterations and additions to the existing shed and the conversion of the shed into a secondary dwelling however, that form of development was not supported due to the following issues:

1.  Section 2.21, Control C12 of Part B1 of the Cumberland DCP states that secondary dwellings are to have side and rear setbacks of 900mm. The proposed development did not comply as a rear setback of 525mm and an eastern side setback of 735mm were proposed.

2.  Section 2.21, Control C5 of Part B1 of the Cumberland DCP states that conversions of outbuildings into secondary dwellings can only be considered when the building meets the standard requirements set by the Building Code of Australia (BCA). The proposed development was unable to comply with the BCA requirements for the reasons listed below.

 

 

a.   The structure does not comply with BCA, part 3.2, Footing and slab;

b.   part 3.4, Framing;

c.   part 3.5.3, Wall cladding; and

d.   part 3.7.1, Fire Separation.

The proposal was subsequently amended to instead propose demolition of the existing shed and construction of a secondary dwelling.

Applicants Supporting Statement

The applicant has provided a Statement of Environmental Effects received by Council on 05 August 2024 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

Building Surveying

The original proposal, comprising of alterations and additions to the existing shed and the conversion into a secondary dwelling, was referred to Council’s Building Surveyor for comment as the original proposal entailed the change in building class of the structure from Class 10 to Class 1a. The recommendation received indicated that the proposal could not be supported due to the following reasons:

1.  The structure does not comply with BCA, part 3.2, footing and slab;

2.  Part 3.4, Framing;

3.  Part 3.5.3, Wall cladding; and

4.  Part 3.7.1, Fire Separation.

The proposal was subsequently amended to instead propose demolition of the existing shed and the construction of a secondary dwelling. Therefore, another internal referral to the Council’s Building Surveyor is no longer required as a conversion of the existing structure is no longer proposed.

External Referrals

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

Planning Comments

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

 

 

State Environmental Planning Policies

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

 

(a)     Statement Environmental Planning Policy (Housing) 2021

The application has been submitted under Part 1 Division 2 of the Housing SEPP. It should be noted that the proposal complies with the key planning controls contained within the Housing SEPP, with the exception of the minimum lot size as discussed below and is considered acceptable from an environmental planning viewpoint.

Local Environmental Plans

Cumberland Local Environmental Plan 2021

The provisions of the Cumberland Local Environmental Plan 2021 are 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 a secondary dwelling and is permissible in the R2 Low Density Residential Zone with consent as per State Environmental Planning Policy (Housing) 2021.

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.

Figure 4 – Cumberland LEP 2021 Compliance Table

(b)     Clause 4.6 – Variation to Lot Size

Clause 4.6 aims to achieve better design outcomes for and from development by allowing an appropriate degree of flexibility to development standards if particular circumstances are satisfied.

The application seeks to vary the development standard for the minimum lot size under section 53(2)(a) of State Environmental Planning Policy (Housing) 2021.

Consent may only be granted upon the consent authority being satisfied that the applicant has demonstrated, in a document submitted with the application, that (a) compliance with the development standard is unreasonable or unnecessary in the circumstances, and (b) there are sufficient environmental planning grounds to justify the contravention of the development standard.

The decision of Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827, affirmed in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 set out five common and non-exhaustive ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary. They were that:

(i)      the objectives of the development standard are achieved notwithstanding non-compliance with the standard.

(ii)     the underlying objective or purpose is not relevant to the development with the consequence that compliance is unnecessary.

(iii)    the underlying objective or purpose would be defeated or thwarted if compliance was required with the consequence that compliance is unreasonable.

(iv)    the development standard has been virtually abandoned or destroyed by the Council’s decisions in granting development consents that depart from the standard and hence compliance with the standard is unnecessary and unreasonable.

(v)     the zoning of the particular land on which the development is proposed to be carried out was unreasonable or inappropriate so that the development standard, which was appropriate for that zoning, was also unreasonable or unnecessary as it applied to that land and that compliance with the standard in the circumstances of the case would also be unreasonable or unnecessary.

Applicant’s Justification:

The applicant states that the objectives of the development standard are achieved, and thus within the public interest, as the proposed development is to be carried out in a R2 Low Density Residential Zone and is permissible with consent. Additionally, the proposed development contributes to the needs of the community in terms of housing as it will meet the needs of more vulnerable members of the community as the population of the Cumberland locality includes very low to moderate income households, seniors and people with a disability.

Whilst it is noted that the shortfall to the minimum lot size requirement is 45.3m2, the other requirements have been met. Therefore, a reasonable level of amenity is provided to the residents of the proposed development. The location of this lot is in close proximity to public transport, community facilitates and services hence, the proposed secondary dwelling contributes to the promotion of the planning and delivery of housing in locations where it will make good use of existing and planned infrastructure and services. The proposed development does not result in adverse impacts to the environment. The proposed secondary dwelling also contributes to 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, which are minimal.

Planner’s Analysis:

Notwithstanding the non-compliance with Clause 53 (2)(a) of State Environmental Planning Policy (Housing) 2021, the objectives of the development standard are achieved as it contributes to the diverse range of housing within the locality, provides an affordable type of accommodation, does not result in adverse amenity or environmental impacts towards the surrounding area, and is in close proximity to community facilitates and public transport. The proposed secondary dwelling also enhances the local area and does not result in adverse bulk and scale impacts towards adjoining properties as it complies with the site coverage, deep soil zone and POS requirements within the Cumberland DCP. Despite the 45.3m2 shortfall to the development standard for the minimum lot size, all other requirements are met. Additionally, similar developments are approved in the locality including a secondary dwelling approved on the adjacent property to the east, which has a similar lot size to the subject property. Therefore, the objectives of the development standard are achieved despite the non-compliance.

In respect of there being sufficient environmental planning grounds to justify the contravention of the development standard, Initial Action found that although the phrase ‘environmental planning’ is not defined, it would refer to grounds that relate to the subject matter, scope and purpose of the Environmental Planning and Assessment Act 1979, including the objects in s.1.3. To be sufficient, the environmental planning grounds advanced in the written request must justify the contravention of the development standard, not simply promote the benefits of carrying out the development as a whole Four2Five Pty Ltd v Ashfield Council [2015] NSWCA 248.

 

 

Applicant’s Justification:

The lot size of 404.7m2 still complies with Council's Cumberland Development Control Plan 2021 of minimum 380m2 as the subject application is a Development Application not a Complying Development Certificate application.

Planner’s Analysis:

If there is any conflict between a development standard within a State Environmental Planning Policy (Housing) 2021 and the LEP or DCP, the SEPP overrides the LEP/DCP Control. Nonetheless, there are sufficient environmental planning grounds to justify contravening the development standard as the proposed development complies in full with the Cumberland Local Environmental Plan 2021, the Cumberland Development Control Plan 2021 and all other requirements of State Environmental Planning Policy (Housing) 2021. Additionally, the proposal is consistent with an existing development to the east, which consists of a secondary dwelling to the rear and has a similar lot size to the subject property. The proposed development does not result in adverse amenity or bulk and scale impacts to the surrounding area. Therefore, there are sufficient environmental planning grounds to justify contravening the development standard.

Conclusion

As the applicant’s justification has satisfied the test under clause 4.6, the application is capable of being approved, subject to a satisfactory merit assessment.

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

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))

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 26 June 2024 and10 July 2024. No submissions were received in respect of the proposed development.

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

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

CUMBERLAND LOCAL INFRASTRUCTURE CONTRIBUTIONS PLAN 2020

The development would require the payment of contributions in accordance with Cumberland Local Infrastructure Contributions Plan 2020.

In accordance with the Contribution Plan a contribution is payable, pursuant to Section 7.11 of the EP&A Act, calculated on the cost of works. A total contribution of $10,776 would be payable prior to the issue of a Construction Certificate.

HOUSING AND PRODUCTIVITY CONTRIBUTION (HPC)

In accordance with Schedule 2 of the Order, the proposed development is exempt from the HPC, as it is for a secondary dwelling.

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 R2 Low Density Residential Zone under the relevant provisions of the Cumberland LEP, however variations in relation to the minimum lot size under Clause 53(2)(a) of State Environmental Planning Policy (Housing) 2021 is sought.

Having regard to the assessment of the proposal from a merit perspective, Council may be satisfied that the development has been responsibly designed and provides for acceptable levels of amenity for future residents. It is considered that the proposal successfully minimises adverse impacts on the amenity of neighbouring properties. Hence the development, irrespective of the departure 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. The objectors will also be notified in writing of the outcome.

1.  That the Clause 4.6 variation request to vary the minimum lot size development standard, pursuant to the Cumberland LEP 2021, be supported.

2.  That Development Application No. DA2024/0171 for the demolition of the existing shed and the construction of a secondary dwelling on land at 56 Mona Street AUBURN NSW  2144 be Approved subject to conditions listed in the attached schedule.

1.      Draft Notice of Determination  

2.      Architectural Plans  

3.      Cumberland LEP Assessment  

4.      Cumberland DCP Assessment  

5.      BASIX Certificate  

6.      Clause 4.6 Variation Request   

 

DOCUMENTS
ASSOCIATED WITH
REPORT ELPP029/24

Attachment 1

Draft Notice of Determination

 9 October 2024

DOCUMENTS
ASSOCIATED WITH
REPORT ELPP029/24

Attachment 2

Architectural Plans

 9 October 2024

DOCUMENTS
ASSOCIATED WITH
REPORT ELPP029/24

Attachment 3

Cumberland LEP Assessment

 9 October 2024

DOCUMENTS
ASSOCIATED WITH
REPORT ELPP029/24

Attachment 4

Cumberland DCP Assessment

 9 October 2024

DOCUMENTS
ASSOCIATED WITH
REPORT ELPP029/24

Attachment 5

BASIX Certificate

 9 October 2024

DOCUMENTS
ASSOCIATED WITH
REPORT ELPP029/24

Attachment 6

Clause 4.6 Variation Request

 9 October 2024

 9 October 2024

Item No: ELPP030/24

Development Application - 77-85 Station Road, Auburn

Directorate:                                       Environment and Planning  

Responsible Officer:                       Executive Manager City Planning and Development   

 

 

1.  Development Application No. DA2024/0137 was accepted on 26 March 2024 for the Alterations and additions to the approved residential flat building pursuant to State Environmental Planning Policy (Housing) 2021 including the addition of two storeys comprising of 16 units and the incorporation of 12 affordable housing apartments across lower ground to level 4, common open space addition, changes to basement car parking, unit mix, layout and configuration.

2.  The application was publicly notified to occupants and owners of the adjoining properties for a period of 14 days between 25 April 2024 and 9 May 2024. In response, one submission was received.

 

Figure 1 - The variations are as follows:

3.  The application is referred to the Cumberland Local Planning Panel as the proposal incorporates a development in which State Environmental Planning Policy (Housing) 2021 Chapter 4 applies being an apartment building complex which is more than four storeys in height.

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

 

 

 

Subject Site and Surrounding Area

The site comprises of 5 allotments of land known as:

·         Lot 28 Sec 3 DP 995;

·         Lot 1 DP 399941;

·         Lot 2 DP 399941;

·         Lot 1 DP 502468; and

·         Lot 2 DP 502468.

The site has a street address of 77 – 85 Station Road Auburn. The site has an area of 2,787m2 and a combined frontage of 45.72m to Station Road. The site has a depth of 60.96m and is an east west oriented allotment.

The site is zoned R4 High Density Residential and is predominantly surrounded by older style residential flat buildings. The sites are currently occupied by one single storey dwelling and two single storey dual occupancy on either side of the dwelling. The site has an approximate fall of 2.67m from the front (19.17) to the rear (16.50).

There is a two storey walk-up residential flat building to the south and north of the subject site.

Figure 2 – Locality Plan of subject site

Figure 3 – Aerial view of subject site

Figure 4 – Street view of subject site

Description of The Development

The application seeks approval for an amending development application to introduce two new levels, the addition of 12 affordable housing apartments across levels lower ground to level 4 and associated alterations and additions to an approved development consent for a residential flat building development (DA-544/2017/B).

It is noted that this consent was due to expire on the 10 April 2024. However, due to the Covid-19 pandemic, an additional 2 year extension was granting, making               DA-544/2017/B still active and due to expire on the 10 April 2026.

The introduction of the two additional two levels of apartments results in modifications to various aspects of the development approved under Development Consent             DA-544/2017/B. The changes include the total number of apartments, the introduction of 12 affordable housing apartments spread across levels lower ground to level 4, the residential apartment mix, changes to the design of the basement levels, the provision of communal space and various other internal and external design changes to the building and the site.

A detailed account of each level is provided below.

Basement B2:

·    34 carparking spaces provided for residents (inclusive of 7 accessible car parking spaces). 

·    2 lifts and 2 fire safety stairs provided for.

·    Storage cages for each residential apartment.

·    Service cupboards.

·    Ramp driveway access.

Basement B1:

·    38 carparking spaces provided for residents (inclusive of 4 accessible car parking spaces). 

·    2 lifts and 2 fire safety stairs provided for.

·    Storage cages for each residential apartment.

·    Service cupboards.

·    Ramp driveway access.

Lower Ground floor:

·    14 visitor car parking spaces (inclusive of 1 accessible car parking space.

·    17 bicycle parking spaces and 3 motorbike parking spaces.

·    Accessible toilet. 

·    2 lifts and fire safety stairs.

·    5 residential apartments, inclusive of 4 x 2 bedrooms and 1 x 1 bed room (2 apartments proposed to be dedicated as affordable housing units).

Ground Floor: 

·    Communal open space and bin room area.

·    2 lifts and fire safety stairs.

·    9 residential apartments, inclusive of 6 x 2 bedrooms, 2 x 1 bedrooms and 1 x studio (3 apartments proposed to be dedicated as affordable housing units).

Level 1: 

·    2 lifts and fire safety stairs.

·    Services cupboards, lobby, and waste chute.

·    10 residential apartments, inclusive of 7 x 2 bedrooms, 2 x 1 bedrooms and 1 x studio (2 apartments proposed to be dedicated as affordable housing units).

Level 2: 

·    2 lifts and fire safety stairs.

·    Services cupboards, lobby, and waste chute.

·    10 residential apartments, inclusive of 8 x 2 bedrooms, 1 x 1 bedrooms and 1 x studio (2 apartments proposed to be dedicated as affordable housing units).

Level 3: 

·    2 lifts and fire safety stairs.

·    Services cupboards, lobby, and waste chute.

·    9 residential apartments, inclusive of 8 x 2 bedrooms, 2 and 1 x 3 bedroom (2 apartments proposed to be dedicated as affordable housing units).

Level 4: 

·    2 lifts and fire safety stairs.

·    Services cupboards, lobby, and waste chute.

·    9 residential apartments, inclusive of 8 x 2 bedrooms, and 1 x 3 bedroom (1 apartment is proposed to be dedicated as affordable housing units).

Level 5: 

·    2 lifts and fire safety stairs.

·    Services cupboards, lobby, and waste chute.

·    9 residential apartments, inclusive of 8 x 2 bedrooms, and 1 x 3 bedroom.

Level 6: 

·    2 lifts and fire safety stairs.

·    Services cupboards, lobby, and waste chute.

·    7 residential apartments, inclusive of 7 x 2 bedrooms.

The following table (figure 5) provides an overview comparison of approved development and proposed subject development:

History

On 10 April 2019, pursuant to DA-544/2017/B, Council’s Local Planning Panel approved a Section 8.3 Review application that sought approval to demolish all existing structures and construction of 5-6 storey residential flat building containing 54 apartments over 2-3 levels of basement car parking containing 76 car spaces.

Applicants Supporting Statement

The applicant has provided a Statement of Environmental Effects prepared by Caladines Town Planning Pty Ltd dated 21 March 2024 and was received by Council on 26 March 2024 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 recommended 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 and therefore can be supported subject to recommended conditions of consent.

Waste Management

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

External Referrals

Ausgrid

The development application was referred to Ausgrid who has raised no objections.

Planning Comments

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

State Environmental Planning Policies

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

(a)  State Environmental Planning Policy (Housing) 2021 – Chapter 4 Design of residential apartment development

Chapter 4 of SEPP (Housing) 2021 applies to the development as the building is 3 storeys or more and contains more than 4 dwellings. A design statement addressing the design quality principles prescribed by Chapter 4 SEPP (Housing) 2021 was prepared by the project architect. Integral to Chapter 4 of SEPP (Housing) 2021 is the Apartment Design Guide (ADG) which sets benchmarks for the appearance, acceptable impacts and residential amenity of the development.

Following a detailed assessment of the proposal against the provisions of Chapter 4 of the SEPP (Housing 2021) and the ADG, the proposal is generally considered compliant and therefore performs satisfactorily with respect to building amenity and landscape design. A comprehensive assessment against Chapter 4 of SEPP (Housing) 2021 and the ADG is contained in Attachments 6 and 7.

Solar Access

Part 4A of the ADG requires a maximum of 15% of apartments in a building receive no direct sunlight between 9am and 3pm at mid-winter. In total, the development has 15 out of 68 (22%) units receiving no direct sunlight between 9 am and 3 pm at mid-winter. Due to the east – west orientation of the allotment, achieving full northern solar access is challenging. Apartments which are oriented south do not receive solar access between 9am and 3pm mid-winter. This was a similar situation approved under the original application (DA-544/2017/B). The new proposed levels 5 and 6 have a total of 4 apartments out of 16 which do not receive solar access. It is noted that south facing unit 606 has been fitted with a skylight, which will allow for solar access to penetrate through to living areas throughout the day. Overall, on merit the variation can be considered acceptable.

 

Common Circulation

Part 4F of the ADG requires a maximum number of 8 apartments off a circulation core on a single level is eight. The development proposes a maximum of 10 apartments off a single core level. This is the same situation as previously approved under the original application (DA-544/2017/B). The new proposed level 5 contains 9 apartments off a single core level. This is considered acceptable as 2 lifts and 2 sets of fire safety stairs per level have been proposed. Each lobby area is of a decent size, not fully enclosed and contains with large windows either end allowing for natural light and ventilation. Overall, on merit the variation can be considered acceptable. 

A comprehensive assessment against SEPP (Housing) 2021 and the ADG is contained in Attachments 6 & 7.

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 R4 – High Density Residential zone.

(a)     Permissibility:

The proposed development is defined as a residential flat building development, which is permissible with consent in the R4 High Density land use zone.

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.

The relevant matters to be considered under the Cumberland LEP 2021 and the applicable clauses for the proposed development are summarised below. A comprehensive LEP assessment is contained in Attachment 8.

Figure 6 – Cumberland LEP 2021 Compliance Table

Clause 4.6 Variation to maximum permitted building height

Clause 4.6 aims to achieve better design outcomes for and from development by allowing an appropriate degree of flexibility to development standards if particular circumstances are satisfied.

The application seeks to vary the development standard for the maximum building height under clause 16(3) and 18(2) specified in the State Environmental Planning Policy Housing 2021 which is described in detail below.

Consent may only be granted upon the consent authority being satisfied that the applicant has demonstrated in a document submitted with the application that (a) compliance with the development standard is unreasonable or unnecessary in the circumstances and (b) there are sufficient environmental planning grounds to justify the contravention of the development standard.

 

The decision of Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827, affirmed in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 set out five common and non-exhaustive ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary. They were that:

(i)      the objectives of the development standard are achieved notwithstanding non-compliance with the standard.

(ii)     the underlying objective or purpose is not relevant to the development with the consequence that compliance is unnecessary.

(iii)    the underlying objective or purpose would be defeated or thwarted if compliance was required with the consequence that compliance is unreasonable.

(iv)    the development standard has been virtually abandoned or destroyed by the Council’s decisions in granting development consents that depart from the standard and hence compliance with the standard is unnecessary and unreasonable.

(v)     the zoning of the particular land on which the development is proposed to be carried out was unreasonable or inappropriate so that the development standard, which was appropriate for that zoning, was also unreasonable or unnecessary as it applied to that land and that compliance with the standard in the circumstances of the case would also be unreasonable or unnecessary.

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

Applicant’s Justification:

On 26 March 2024, DA-2024/0137 was lodged with Council to carry out alterations and additions to the approved 5-6 storey residential flat building (RFB) on the land including the provision of 14 additional units, of which 11 units have been allocated towards affordable housing. The FSR and height bonus provisions increases the permissible building height from 18m to 23.4m (30% of 18m = 5.4m). Because this clause 4.6 submission only seeks to vary the permissible building height contained within SEPP Housing 2021, the FSR bonus is not discussed further.

Since the granting of the original consent on 10 April 2019, the subject site is now identified on Council’s records as a “Flood Control Lot”. As a result of this, the approved RFB has had to be lifted above the approved RL by 265mm or RL19.700. This has resulted in a small portion of the roof extending above the maximum height control by 250mm or 1.1%, increasing the height to 23.665m or 1.1%. As shown on the drawings, the majority of the roof does not encroach above the permissible building height of 23.4m.

This written request seeks to demonstrate that compliance with the maximum building height control of 23.4m permitted under Clause 18 (2) of SEPP Housing 2021 is unreasonable or unnecessary in the circumstances of the case because there are sufficient environmental planning grounds to justify contravening this development standard.

This submission demonstrates that the height standard is unreasonable or unnecessary in the circumstances of this case and that there are sufficient environmental planning grounds to justify contravening the building height control prescribed by SEPP Housing 2021 by 250mm or 1.1% for a small portion of the roof.

Compliance with the development standard is deemed to be unreasonable or unnecessary in the circumstances of this case because the departure sought does not create any additional amenity impacts upon the built and natural environments to that of a fully compliant design scheme of 23.4m.

Notwithstanding the non-compliance with the building height control, the proposed development will perform favourably in relation to the objectives of the zone and of the development height standard. In particular, the generic intent behind the height standard is to control the scale of new development and not unreasonably increase amenity impacts. The proposed RFB demonstrates that although marginally in excess of the height control by 250mm or 1.1%. in small areas, the proposal will readily fit within this transitional neighbourhood context.

Planner’s Analysis:

The applicant’s discussion is supported given the minor variation, which has minimal impact on surrounding sites. Additional solar access impacts are considered minimal and the site now identifies as a flood control lot, necessitated the need to raise the lower floor level of the building.  It is considered that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case.

Are there sufficient environmental planning grounds to justify the proposed contravention of the development standard?

In respect of there being sufficient environmental planning grounds to justify the contravention of the development standard, Initial Action found that although the phrase ‘environmental planning’ is not defined, it would refer to grounds that relate to the subject matter, scope and purpose of the Environmental Planning and Assessment Act 1979, including the objects in s.1.3. To be sufficient, the environmental planning grounds advanced in the written request must justify the contravention of the development standard, not simply promote the benefits of carrying out the development as a whole Four2Five Pty Ltd v Ashfield Council [2015] NSWCA 248.

Applicant’s Justification:

Clause 4.6 permits flexibility in the consideration of a development standard, in this particular case, building height is relevant for the proposed RFB.

Because of new flooding constraints associated with the development site, the building design has been lifted, with the site requiring the flexible application of the standard, where the merits of the application are substantially relevant because of the newly adopted flood controls.

This submission contends that strict compliance with the maximum building height control of 23.4m plus and additional 250mm or 1.1% above that numeric standard is unreasonable or unnecessary in the circumstances of the case and that the variation sought can be justified on environmental planning grounds as the proposal will have no impacts on the surrounding urban environment, in terms of overshadowing, view loss, bulk and scale and an unreasonable height increase.

The above statement is made because the variation is extremely minor in the context of the overall development. The environmental flooding constraints on the land and the transitional change to the urban character of this neighbourhood, is consistent with the adopted controls for transforming land in this neighbourhood into high density residential neighbourhood.

We have formed the view that there is no public benefit in maintaining strict compliance with the development standard in this instance given the departure from the height control is extremely minor and will have no negative consequences in terms of promoting the social and economic welfare of the community and a better environment.

The departure from the height control of 23.4m by 250mm or 1.1% allows for the orderly and economic use of the site in a manner which would otherwise achieve the outcomes and objectives of the relevant planning controls.

No public disadvantages have been identified as it has been demonstrated that any environmental or other impacts associated with the development are extremely minor and will not be noticed when compared to that of a fully compliant design scheme permitted by Section 18 of SEPP 2021.

This Clause 4.6 (3) (a) & (b) variation demonstrates that the increased building height satisfies:

·    Council’s standards associated with land that is subject to flooding. Raising the building by 265mm ensures the building is above the new flooding controls affecting the lot;

·    the relevant objectives of the height standard demonstrate the departure will not impact upon the amenity of adjoining neighbours as it does not cast any additional shadow onto adjoining properties that would be considered unreasonable;

·    the L&E Court planning principles as the proposed increase in building height does not block or interrupt any view corridors or vistas;

·    the proposed RFB development is permissible under the sites R4 High Density Residential zone and is consistent with the zones objectives;

·    the variation is consistent with all relevant State Planning Policies to increase housing densities around public transport corridors and employment hubs;

·    the test in achieving the orderly and economic use of land;

·    the underlying objective of the standard would be defeated or thwarted if full compliance was required;

·    the public interest test as it allows for the orderly and economic use of the land; and

·    urban consolidation initiatives in that the type of housing proposed will be adaptable, and will assist to meet Council strategic housing targets for their LGA.

The combined effect of these assessments confirms that the flexible application of the height standard is appropriate in this instance because the written variation submission is well founded and that full compliance with the height standard set by Section 18 of SEPP Housing 2021 is unreasonable or unnecessary in the circumstances of this application.

Accordingly, the Cumberland Local Planning Panel (CLPP) as the consent authority can be satisfied that the applicant’s written request has adequately addressed the matters required to be demonstrated by clause 4.6 (3) of CLEP 2021 and SEPP Housing 2021 and 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 proposed development is to be carried out.

Planner’s Analysis:

Adequate grounds exist to support the applicant’s explanation. In this regard:

·    No additional bulk or scale impacts arise from the minor height of building encroachment.

·    No additional solar access implications arise from the height non compliances.

·    The non-compliances allows for the development to comply with the flood control levels.

It is demonstrated that there are sufficient site-specific environmental planning grounds to justify a variation in the circumstances of the case.

Conclusion:

As the applicant’s justification has satisfied the test under clause 4.6, the application is capable of being approved, subject to a satisfactory merit assessment.

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:

·    Part A2 – Subdivision

·    Part A3 – Site Amalgamation and isolated sites

·    Part B3 – Residential Flat Buildings

·    Part B5 – Adaptable Housing and Housing Mix

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

·    Part G4 – Stormwater and Drainage

·    Part G5 – Sustainability, Biodiversity and Environmental Management

·    Part G7 – Tree Management and Landscaping

·    Part G8 – Waste Management

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

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 DCP 2021, the proposal was publicly notified for a period of 14 days between 25 April 2024 and 9 May 2024. The notification generated 1 submission in respect of the proposal. The issues raised in the public submissions are summarised and commented on as follows:

Figure 7 – 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.

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 $300,809 would be payable prior to the issue of a Construction Certificate.

It is noted that contributions for DA-544/2017/B will also be modified to be $402,326.60 to account for indexation of the contribution since the approval was issued.

Therefore, the total contribution payable is $703,135.60 for the overall development.

HOUSING AND PRODUCTIVITY CONTRIBUTION (HPC)

In accordance with s7.24, s7.26 and s7.28 of the Environmental Planning and Assessment Act, 1979 the proposed development is subject to the (Housing and Productivity Contribution) Act 2023, and subject to the payment of the Housing and Productivity Contribution (HPC).

A condition of consent has been imposed on the development consent in accordance with s7.28 of the EP&A Act 1979 requiring the payment of a HPC.

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, Environmental Planning Policy (Biodiversity and Conservation) 2021, Environmental Planning Policy (Resilience and Hazards) 2021, Environmental Planning Policy (Transport and Infrastructure) 2021, Environmental Planning Policy (sustainable Buildings) 2022, Cumberland Local Environmental Plan 2021 and 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. The proposal is consistent with all statutory and non-statutory controls applying to the development. Minor non-compliances with Council’s controls have been discussed in the body of this report. The development is considered to perform adequately in terms of its relationship to its surrounding built and natural environment, particularly having regard to impacts on adjoining properties.

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

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. The objectors will also be notified in writing of the outcome.

1.  That the Clause 4.6 variation request to contravene the building height development standard, pursuant to the SEPP (Housing) 2021 Chapter 2 Clause 16, be supported.

2.  That Development Application No. DA2024/0137 for the alterations and additions to the approved residential flat building pursuant to State Environmental Planning Policy (Housing) 2021 including the  addition of two storeys comprising of 16 units and the incorporation of 12 affordable housing apartments across lower ground to level 4, common open space addition, changes to basement car parking, unit mix, layout and configuration on land at 77 - 85 Station Road AUBURN NSW 2144 be approved subject to conditions listed in the attached schedule.

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

1.      Draft Notice of Determination  

2.      Architectural Plans  

3.      Redacted Submission  

4.      Development Consent - DA-544/2017/B  

5.      Stamped Plans - DA-544/2017/B  

6.      State Environmental Planning Policy (Housing) 2021  

7.      Apartment Design Guide Assessment Table  

8.      Cumberland Local Environmental Plan 2021 Assessment  

9.      Cumberland Development Control Plan 2021 Assessment  

10.    Clause 4.6 Variation to Building Height   

 

DOCUMENTS
ASSOCIATED WITH
REPORT ELPP030/24

Attachment 1

Draft Notice of Determination

 9 October 2024

DOCUMENTS
ASSOCIATED WITH
REPORT ELPP030/24

Attachment 2

Architectural Plans

 9 October 2024

DOCUMENTS
ASSOCIATED WITH
REPORT ELPP030/24

Attachment 3

Redacted Submission

 9 October 2024

DOCUMENTS
ASSOCIATED WITH
REPORT ELPP030/24

Attachment 4

Development Consent - DA-544/2017/B

 9 October 2024

DOCUMENTS
ASSOCIATED WITH
REPORT ELPP030/24

Attachment 5

Stamped Plans - DA-544/2017/B

 9 October 2024

DOCUMENTS
ASSOCIATED WITH
REPORT ELPP030/24

Attachment 6

State Environmental Planning Policy (Housing) 2021

 9 October 2024

DOCUMENTS
ASSOCIATED WITH
REPORT ELPP030/24

Attachment 7

Apartment Design Guide Assessment Table

 9 October 2024

DOCUMENTS
ASSOCIATED WITH
REPORT ELPP030/24

Attachment 8

Cumberland Local Environmental Plan 2021 Assessment

 9 October 2024

DOCUMENTS
ASSOCIATED WITH
REPORT ELPP030/24

Attachment 9

Cumberland Development Control Plan 2021 Assessment

 9 October 2024

DOCUMENTS
ASSOCIATED WITH
REPORT ELPP030/24

Attachment 10

Clause 4.6 Variation to Building Height

 9 October 2024

 9 October 2024

Item No: ELPP031/24

Development Application - 149 Auburn Road, Auburn

Directorate:                                       Environment and Planning  

Responsible Officer:                       Executive Manager City Planning and Development   

 

 

1.  Development Application No. DA2024/0205 was accepted on 13 June 2024 for the construction of a toilet cubicle on the rooftop and awning on the ground floor of the existing Al Faisal College.

2.  The application was publicly notified to occupants and owners of the adjoining properties for a period of 14 days between 27 June 2024 and 11 July 2024. In response, 3 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.  The application is recommended for approval subject to the conditions as provided in Council’s assessment report.

Subject Site and Surrounding Area

The site is identified as Lot 15 in DP 1199248 being 149 Auburn Road Auburn. The site is located to the eastern side of Harrow Road and western side of Auburn Road. It lies in the vicinity of Beatrice Street at the north and Helena Street at the south. The site is irregularly shaped and occupies an area of 6,830sqm with frontages to Harrow Road and Auburn Road.

There is a college situated across the site known as Al Faisal College which consists of 4 to 5 storey buildings (Building A, B, C, D and E) with roof top play areas. Building A and E are affected by this application for the awning and toilet block respectively.

The Auburn Uniting Church and associated hall is situated to the immediate south of the site at 31 Helena Street with the church situated on the street corner. The church building and adjacent hall is identified as an item of local heritage significance under the Cumberland Local Environmental Plan 2021 (Item No I11).

Directly to the north, there is a three-storey residential flat building complex with frontages to both Harrow Road and Auburn Road. Directly to the west, there are residential flat buildings and dwelling houses situated on the western side of Harrow Road. Directly to the east, there are residential flat buildings and dwelling houses on the eastern side of Auburn Road.

The college site is located within an established medium density residential precinct and is currently zoned for R3 Medium-Density residential zone under the Cumberland Local Environmental Plan 2021.

Locality map of the site.

 

Aerial imagery of the College from Auburn Road.

Photo of the location of the proposed toilet cubicle.

 

Photo of the location of the proposed awning.

 

Description of The Development

The development application seeks to construct the following:

·    Toilet cubicle on the rooftop play area consisting of:

-     A gross floor area of 61.3sqm;

-     Floor to ceiling height of 3m and a maximum height of 19.6m from the existing natural ground level of the subject building;

-     Male toilets with 6 cubicles and 7 handwash basins;

-     Female toilets with 6 cubicles and 6 handwash basins; and

-     Disabled toilet with a handwash basin.

·    Awning above the existing pedestrian access ramp attached to the northern elevation of the existing Building A and B with a maximum height of 6.5m, maximum width of 3.31m and located 0.3m from the boundary.

It is noted that no change to the previously approved maximum height of 23.65m is sought.

The toilet cubicle is located on the rooftop play area and is fully enclosed. In this regard, the toilet cubicle adds 61.3sqm to the existing gross floor area of the site. This increases the floor space ratio of the college by 0.0089:1 from 2.892:1 to 2.9:1 (gross floor area of 19,752.36sqm to 19,813.66sqm).There are no consultation processes for Council associated with this report.

History

No.	Proposal	Status	Date
DA-132/1991	Development Application for change of use of existing dwelling as Islamic School and Cultural Centre.	Approved	10/12/1991
DA-399/2004	Development Application for demolition of 4 existing dwellings at 52 - 56 Harrow Road and construction of a 4 storey addition and alterations to an existing school known as Al Faisal College to service a total of 1000 pupils and incorporating basement car parking for a total of 54 vehicles and associated landscaping, drainage and public domain works.	Deferred Commencement   Operational	26/08/2005     09/11/2005
DA-422/2007	Use of roof-top level of existing college building as a play area including the construction of 6m high chainwire fence and 1.8m high and 12mm thick perspex screening around the perimeter of the roof level and construction of shade sails.	Approved under Staff Delegation	23/02/2009
DA-305/2009	Development application for alterations and additions to existing building to Auburn Road involving a new storey for classrooms and meeting room, increase ceiling height and roof to existing assembly hall, new lift and upgrade fire stairs, covered walkway, masonry fence and gates - Al Faisal College.	Approved under Staff Delegation	21/10/2009
DA-101/2011	Development Application for alterations and additions to existing school including the provision additional ground level amenities and the construction of a rooftop play area and additional roof level amenities.	Approved under Council	10/08/2011
DA-94/2014	Development Application for construction of a new attached 3 storey school building (Building E) over two basement levels.	Deferred Commencement   Operational	26/08/2014     14/10/2014
DA-295/2014/A	Section 82A review for the construction of 2 additional floors above an approved 3 storey building (Building E).	Approved under Council	20/05/2015
DA-295/2014/B	Section 96(1A) modification to Building E, including conversion of non-trafficable roof into play area.	Approved under Staff Delegation	11/10/2017

Applicants Supporting Statement

The applicant has provided a Statement of Environmental Effects prepared by Rockeman Town Planning and dated March 2024. This was supported by a statement addressing Clause 4.6 of the Cumberland Local Environmental Plan 2021 dated August 2024.

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

Building Surveying

The development application was referred to Council’s Building Surveyor for comment who has advised that the development proposal is satisfactory subject to a condition addressing fire safety, access and building code compliance 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 subject to conditions ensuring the site is suitably maintained during construction and therefore can be supported subject to recommended conditions of consent.

External Referrals

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

Planning Comments

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

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

·   

State Environmental Planning Policies (SEPPs)	Relevant Clause(s)	Compliance with Requirements
State Environmental Planning Policy (Biodiversity and Conservation) 2021.	Chapter 2 -Vegetation in non Rural Areas.	No bushland zoned or reserved for public open space is affected by the scope of this proposal.
	Chapter 6 - Water Catchments.   Sydney Harbour Catchment.	The proposed development raises no issues as no impact on the catchment is envisaged.   (Note: - the subject site is not identified in the relevant map as ‘land within the ‘Foreshores and Waterways Area’ or ‘Wetland Protection zone’, is not a ‘Strategic Foreshore Site’ and does not contain any heritage items. Hence the majority of the State Policy is not directly relevant to the proposed development).
State Environmental Planning Policy (Resilience and Hazards) 2021.	Chapter 2 - Coastal Management.	N/A – The subject site is not identified as a coastal wetland or ‘land identified as “proximity area for coastal wetlands” or coastal management area.
	Chapter 3 - Potentially hazardous or potentially offensive development.	N/A – No potentially hazardous or offensive development proposed. Council’s Environmental Health Unit has reviewed the proposed development and raised no objections, subject to conditions.
	Chapter 4 - Remediation of Land.   Part 4.6.	The history of the site is predominantly residential and later for educational use. The development application is for the construction of toilets and an awning which does not require any excavation work on site.   In view of the above, Council is satisfied that the proposed development is considered suitable to accommodate the development.
State Environmental Planning Policy (Transport and Infrastructure) 2021	Chapter 2 - Infrastructure.	Development likely to affect an electricity transmission or distribution network (Division 5, Subdivision 2, Clause 2.48)   N/A – No penetration of the ground within 2m of an underground electricity power line or an electricity distribution pole or within 10m of any part of an electricity tower is proposed.   Development with frontage to classified road (Division 17, Subdivision 2, clause 2.118 and 2.119)   N/A – Auburn Road and Harrow Road are not identified as a classified road in accordance with Transport for New South Wales Schedule of Classified Roads and Unclassified Regional Roads.   The site is not in proximity to a classified road and therefore no impact to a classified road is anticipated.   Development in or adjacent to rail corridors and interim rail corridors (Division 15, Subdivision 2, clause 2.99)   N/A - The subject site is not located within 25m of a rail corridor.
	Chapter 3 – Educational establishments and child care facilities	The development application has been assessed under the relevant provisions of State Environmental Planning Policy (Transport and Infrastructure) 2021. A detailed assessment where relevant is at Appendix A. It is concluded that the proposed development is fully compliant with the relevant provisions of the State Policy.   Clause 3.36(6)(a) of State Environmental Planning Policy (Transport and Infrastructure) 2021 requires Council to consider the design quality principles set out in Schedule 8 for any development application for a school or works within a school ground. The works have been assessed using the design quality principles and it is determined that the works are satisfactory with the relevant provisions. A detailed assessment is at Appendix A.
State Environmental Planning Policy (Sustainable Buildings) 2022	Chapter 3 – Standards for non-residential development	This Sustainable Buildings SEPP 2022 sets sustainability standards of buildings across NSW for residential and non-residential  development. The SEPP 2022 was notified on 29/08/2022 and came into effect on 01/10/2023 to allow for the relevant industry to adjust to the new standards.   However, Chapter 3 of the Sustainability Buildings SEPP 2022 does not apply to this development as the alterations, enlargement or extension of the existing building does not have a capital investment value of $10 million or more.

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 R3 Medium Density Residential zone, with the exception of Clause 4.3 (height of building) and Clause 4.4 (floor space ratio) as discussed further below.

(a)     Permissibility

The proposed development is defined as ancillary work to an ‘educational establishment’ and is permissible in the R3 Medium Density Residential zone with consent. The definition of a above land use within the Cumberland Local Environmental Plan 2021 is:

Educational establishment means a building or place used for education (including teaching), being—

a)   a school, or

b)   a tertiary institution, including a university or a TAFE establishment, that provides formal education and is constituted by or under an Act.

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

 

 

(b)     Clause 4.6 -  Exceptions to development standards

Clause 4.6 aims to achieve better design outcomes for and from development by allowing an appropriate degree of flexibility to development standards if particular circumstances are satisfied.

The applicant has submitted a written request to vary the development standards for the floor space ratio (Clause 4.4) and building height (Clause 4.3).

Consent may only be granted upon the consent authority being satisfied that the applicant has demonstrated in a document submitted with the application that (a) compliance with the development standard is unreasonable or unnecessary in the circumstances and (b) there are sufficient environmental planning grounds to justify the contravention of the development standard.

The decision of Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827, affirmed in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 set out five common and non-exhaustive ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary. They were that:

i.    the objectives of the development standard are achieved notwithstanding non-compliance with the standard.

ii.   (the underlying objective or purpose is not relevant to the development with the consequence that compliance is unnecessary.

iii.  the underlying objective or purpose would be defeated or thwarted if compliance was required with the consequence that compliance is unreasonable.

iv.  the development standard has been virtually abandoned or destroyed by the Council’s decisions in granting development consents that depart from the standard and hence compliance with the standard is unnecessary and unreasonable.

v.   the zoning of the particular land on which the development is proposed to be carried out was unreasonable or inappropriate so that the development standard, which was appropriate for that zoning, was also unreasonable or unnecessary as it applied to that land and that compliance with the standard in the circumstances of the case would also be unreasonable or unnecessary.

(i) Floor Space Ratio (Clause 4.4)

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

Applicant’s justification:

The matter of Wehbe v Pittwater Council [2007] NSWLEC 827 (21 December 2007) sets out 5 ways in which compliance with a development standard can be demonstrated to be unreasonable or unnecessary in the circumstances of the case. The 5 ways are:

·    If the proposed development proffers an alternative means of achieving the objective, strict compliance with the standard would be unnecessary (it is achieved anyway) and unreasonable (no purpose would be served)

·    The underlying objective or purpose is not relevant to the development with the consequence that compliance is unnecessary

·    The underlying objective or purpose would be defeated or thwarted if compliance was required with the consequence that compliance is unreasonable

·    The development standard has been virtually abandoned or destroyed by the Council’s own actions in granting consents departing from the standard and hence compliance with the standard is unnecessary and unreasonable

·    The zoning of particular land is unreasonable or inappropriate so that a development standard appropriate for that zoning was also unreasonable or unnecessary as it applied to that land and that “compliance with the standard in that case would also be unreasonable or unnecessary.

The subject application relies on the first of the Wehbe Tests being, the objectives of the standard are achieved notwithstanding non-compliance with the standard and the fourth test - the development standard has been virtually abandoned or destroyed by the Council’s own actions in granting consents departing from the standard and hence compliance with the standard is unnecessary and unreasonable. Compliance with the standard is considered unreasonable or unnecessary for the following reasons:

·    The proposal is a permissible form of development in the R3 Medium Residential zone and complies with the objectives of the development standard and zone;

·    The 0.75:1 development standard has been abandoned once the premises was approved for a school exceeding the development standard by almost four times the gross floor area;

·    The variation of the proposed additional gross floor area is due to the additional gross floor area stemming from an additional amenity structure proposed on the rooftop playground for the students to utilise and has an almost consistent overall building height with the top of the staircase structure it adjoins;

·    The bulk and scale of the development remains reflective of and almost consistent with the approved development with a minor change to the amenity building addition on the rooftop structure;

·    The development maintains a density reflective of the existing development and the position of the new amenity building is reflective of the bulk and scale of the staircase structure it will adjoin;

·    The massing of the building is compatible to the existing development;

·    The proposed additional floor space maintains adequate building separation, access, privacy, natural lighting and ventilation to the northern adjoining properties;

·    The bulk, scale and massing of the proposal maintain the characteristics of the streetscape;

·    The proposed design complies with the required development standards and controls, with the exception to FSR and height that have been abandoned when the original development was approved, and responds to the sites context and positioning providing a functional and proportionate development; and

·    The proposal remains within the public interest because it provides for a compatible design and harmonious balance between the current building and the proposed development on the rooftop.

Planner’s Analysis:

The applicants justification can be supported as follows:-

a)   The works are not readily visible from public spaces. In this regard, the works are located on the rooftop play area to the site and not identified from Auburn Road at street level.

b)   The increase is relatively minor in extent.

c)   The additional toilets provides for additional facilities on site in an appropriate location.

The current floor space ratio of the site has been established under previous developments consents issued for the site as well as various modifications granted thereafter.

The proposed increase in floor space ratio is considered to be minor but consistent with the use of the site as an educational establishment. The proposed addition of the toilet block will not add to the intensity of use of the site, does not increase the student population and will not have an adverse impact to the site or to adjoining sites. The toilet blocks are located on the roof level play area and suitably setback to be screened from the street. Other than the addition of the toilet block, no other changes to gross floor area are proposed.

Are there sufficient environmental planning grounds to justify the proposed contravention of the development standard?

Applicant’s Justification:

Neither the LEP, nor any other environmental planning instrument or the Department of Planning and Infrastructure’s August 2011 document entitled “Varying Development Standard: A Guide” provides a specific definition of the term “environmental planning grounds”. Nevertheless, the matter of Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 1009 (30 January 2015) provides some supportive guidance on the principal of “environmental planning grounds” and in accordance with Commissioner Pearson’s comments, we therefore acknowledge that “environmental planning grounds” must be specific to the proposed development on the subject site and would be matters arising from S.4.15 Evaluation Criteria in the EPA Act, 1979.

Based on that methodology, the environmental planning ground which support variation to the standard in this instance are:

·    The development application responds to the objectives of Clause 4.4 of the CLEP 2021 and has been designed to ensure the proposal does not pose any adverse impacts on to the adjoining neighbours and streetscape;

·    The variation of the proposed additional gross floor area does not impact the building envelope of the existing Development;

·    The bulk, scale and massing of the proposal is not impacted by the variation and would provide a density that is reflective of the approved development and within the locality;

·    The proposed works are permissible in the zone and suitable for the subject site;

·    The variation will not impact any the subject heritage item or row of terraces, other local heritage, environmental significance or view corridor;

·    Strict compliance with the standard would be unreasonable considering the proposed development remains within the approved development envelope and would constitute a development outcome that remains within the public interest;

·    The proposal achieves the objectives and the key provisions of the DCP in terms of solar access and setbacks;

·    The character of the area remains unaffected as the resultant development;

·    The design maintains a medium-density character consistent with the existing, desired and transitioning outcome of the planned locality;

·    The design incorporates a compatible building mass, compliant setbacks which responds to the sites context on the northern and western facades;

·    The proposal has a negligible impact on solar access;

·    The site demonstrates potential for an increase in FSR whilst maintaining the same building envelope; and

·    The proposal remains within the public interest due to the lack of impact and overall compliance with the remaining development standards and controls.

Planner’s Analysis:

The statements provided within the Clause 4.6 variation are generally supported given that the toilets are minor additions to the college that are not readily visible from the public space. As such, the Panel may be satisfied that the applicant’s assessment is satisfactory.

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.

The applicant’s justification provided is satisfactory and having considered the application on its merit, the exception to the maximum floor space ratio standard is considered acceptable in this instance.

(c)     Clause 4.6 - Variation to Height of Building (Clause 4.3)

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

Applicant’s Justification:

The matter of Wehbe v Pittwater Council [2007] NSWLEC 827 (21 December 2007) sets out 5 ways in which compliance with a development standard can be demonstrated to be unreasonable or unnecessary in the circumstances of the case. The 5 ways are:

·    If the proposed development proffers an alternative means of achieving the objective, strict compliance with the standard would be unnecessary (it is achieved anyway) and unreasonable (no purpose would be served)

·    The underlying objective or purpose is not relevant to the development with the consequence that compliance is unnecessary

·    The underlying objective or purpose would be defeated or thwarted if compliance was required with the consequence that compliance is unreasonable

·    The development standard has been virtually abandoned or destroyed by the Council’s own actions in granting consents departing from the standard and hence compliance with the standard is unnecessary and unreasonable

·    The zoning of particular land is unreasonable or inappropriate so that a development standard appropriate for that zoning was also unreasonable or unnecessary as it applied to that land and that “compliance with the standard in that case would also be unreasonable or unnecessary.

The subject application relies on the first of the Wehbe Tests being, the objectives of the standard are achieved notwithstanding non-compliance with the standard and the fourth test - the development standard has been virtually abandoned or destroyed by the Council’s own actions in granting consents departing from the standard and hence compliance with the standard is unnecessary and unreasonable. Compliance with the standard is considered unreasonable or unnecessary for the following reasons:

·    The proposal is a permissible form of development in the R3 Medium Residential zone and complies with the objectives of the development standard and zone;

·    The 9m development standard has been abandoned once the premises was approved for a school exceeding the development standard by more than twice the height limit;

·    The variation of the proposed additional height is due to the proposed location on the rooftop playground for the students to utilise and has an almost consistent overall building height with the top of the staircase structure it adjoins;

·    The bulk and scale of the development remains reflective of and almost consistent with the approved development with a minor change to the amenity building addition on the rooftop structure;

·    The development maintains a density reflective of the existing development and the position of the new amenity building is reflective of the bulk and scale of the staircase structure it will adjoin;

·    The massing of the building is compatible to the existing development;

·    The proposed amenities building maintains adequate building separation, access, privacy, natural lighting and ventilation to the northern adjoining properties;

·    The bulk, scale and massing of the proposal maintain the characteristics of the streetscape;

·    The proposed design complies with the required development standards and controls, with the exception to FSR and height that have been abandoned when the original development was approved, and responds to the sites context and positioning providing a functional and proportionate development; and

·    The proposal remains within the public interest because it provides for a compatible design and harmonious balance between the current building and the proposed development on the rooftop.

Planner’s Analysis:

The applicants justification can be supported as follows:-

a)   The additional height does not result in any appreciable increase in shadow impact on adjoining neighbours.

b)   The works are not readily visible from public spaces. In this regard, the works are located on the rooftop play area to the site and not identified from Auburn Road.

c)   The increase is relatively minor in extent.

d)   The additional toilets provides for additional facilities on site in an appropriate location.

The proposed development is considered to provide additional services to the college site in the form of additional toilets at a location appropriate to the student population. The height of the toilet block does not project above the existing roof ridgeline of the development. The proposed toilets block will not cause any adverse impacts to the locality and will not be directly visible from a public space close to the site.

The toilet block is setback to prevent direct view of it from the street and is located to avoid any overshadowing to adjoining allotments. No windows or platforms are proposed that would result in an adverse privacy impact. Given this context, compliance is considered unnecessary in this instance. 

Are there sufficient environmental planning grounds to justify the proposed contravention of the development standard?

Applicant’s Justification:

Neither the LEP, nor any other environmental planning instrument or the Department of Planning and Infrastructure’s August 2011 document entitled “Varying Development Standard: A Guide” provides a specific definition of the term “environmental planning grounds”. Nevertheless, the matter of Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 1009 (30 January 2015) provides some supportive guidance on the principal of “environmental planning grounds” and in accordance with Commissioner Pearson’s comments, we therefore acknowledge that “environmental planning grounds” must be specific to the proposed development on the subject site and would be matters arising from S.4.15 Evaluation Criteria in the EPA Act, 1979.

Based on that methodology, the environmental planning ground which support variation to the standard in this instance are:

·    The development application responds to the objectives of Clause 4.3 of the CLEP 2021 and has been designed to ensure the proposal does not pose any adverse impacts on to the adjoining neighbours and streetscape;

·    The variation of the proposed height of the amenities building does not impact the building envelope of the existing development;

·    The bulk, scale and massing of the proposal is not impacted by the variation and would provide a density that is reflective of the approved development and within the locality;

·    The proposed works are permissible in the zone and suitable for the subject site;

·    The variation will not impact any the subject heritage item or row of terraces, other local heritage, environmental significance or view corridor;

·    Strict compliance with the standard would be unreasonable considering the proposed development remains within the approved development envelope and would constitute a development outcome that remains within the public interest;

·    The proposal achieves the objectives and the key provisions of the DCP in terms of solar access and setbacks;

The character of the area remains unaffected as the resultant development;

·    The design maintains a medium-density character consistent with the existing, desired and transitioning outcome of the planned locality;

·    The design incorporates a compatible building mass, compliant setbacks which responds to the sites context on the northern and western facades;

·    The proposal has a negligible impact on solar access;

·    The site demonstrates potential for an additional structure of the existing concrete slab on the rooftop whilst maintaining the same building envelope, use of the premises and increasing the amenity on-site; and

·    The proposal remains within the public interest due to the lack of impact and overall compliance with the remaining development standards and controls.

Planner’s Analysis:

The statements provided within the Clause 4.6 variation are generally supported given that the toilets are minor additions to the college that are not readily visible from the public space.

As stated above, the proposed maximum height of the toilet block is less than what has been established under previous developments consents issued for the site as well as various modifications granted thereafter.

The proposed increase in height of building is considered to be minor and relates only to an increase to the height in that portion of the building and not an increase to the overall maximum height on site. The development remains consistent with the use of the site as an educational establishment. The proposed addition of the toilet block will not add to the intensity of use of the site, does not increase the student population and will not have an adverse impact to the site or to adjoining sites. The toilet block is located on the roof level play area and suitably setback to be screened from the street. Other than the addition of the toilet block, the remainder of the building maintains its existing height as per previous consents issued for the site.

As such, the Panel may be satisfied that the applicant’s assessment is satisfactory.

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.

The applicant’s justification provided is satisfactory and having considered the application on its merit, the exception to the maximum height of building 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:

·    Part B – Development in Residential Zones 

·    Part G – Miscellaneous Development Controls

Part G8 – Waste Management

The relevant objectives and requirements of Part B (Development in Residential Zones) have been considered in the assessment of the development application given the subject site being located within the R3 Medium Density Residential zone. Whilst Setbacks, Streetscape, Visual and Acoustic Privacy, Car Parking and Site Access can be applied to the proposal, the detailed development control requirements of the Plan refer specifically to residential developments only. This is outlined in Part 1.2 of the Plan. The proposed development does not incorporate any residential element and therefore, the specific controls are not applicable. As such, a detailed assessment is not warranted.

The relevant requirements and objectives of the Traffic, Parking, Transport and Access (Vehicle) part of the Cumberland Development Control Plan 2021 have been considered in the assessment of the development application. The parking rates prescribed by the DCP for educational establishments are based on student and staff numbers.

There are no proposed changes to student or staff numbers on site and as such, no increase in car parking is proposed or required for the site.

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 for a period of 14 days between 27 June 2024 and 11 July 2024. The notification generated 3 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:

 

 

 

 

 

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

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

HOUSING AND PRODUCTIVITY CONTRIBUTION (HPC)

In accordance with Part 2(5) of the Environmental Planning and Assessment (Housing and Productivity Contribution) Order 2023, the proposed development does not trigger any HPC as it does not relate to residential, commercial, retail or industrial development.

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 Policies, the Cumberland Local Environmental Plan 2021 and the Cumberland Development Control Plan 2021. The development is considered to be satisfactory.

The proposed development is permissible within the R3 zone (Medium Density Residential) under the provisions of the Cumberland Local Environmental Plan 2021. A variation to the height of building under Clause 4.3 and floor space ratio under Clause 4.4 of the Cumberland Local Environmental Plan 2021 is sought and it is considered that the variation is reasonable given the scale of works that are proposed.

Having regard to the assessment of the proposal from a merit perspective, Council is satisfied that the development has been responsibly designed and provides for acceptable levels of amenity for the college. It is considered that the proposal successfully minimises adverse impacts on the amenity of neighbouring properties. Hence the development, irrespective of the departure 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 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. The objectors will also be notified in writing of the outcome.

1.  That the Clause 4.6 variation requests to contravene the floor space ratio and height of building development standards, pursuant to the Cumberland Local Environmental Plan 2021, be supported.

2.  That Development Application No. DA2024/0205 for the construction of a toilet cubicle on the rooftop and awning on the ground floor of the existing Al Faisal College on land at 149 Auburn Road, AUBURN NSW  2144 be approved subject to the conditions listed in Council’s assessment report.

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

1.      Draft Notice of Determination  

2.      Appendix A - State Environmental Planning Policy (Transport and Infrastructure) 2021  

3.      Appendix B - Cumberland LEP 2021 -  

4.      Architectural Plans  

5.      Clause 4.6 Variation - FSR  

6.      Clause 4.6 Variation - Height  

7.      Redacted Submissions   

 

DOCUMENTS
ASSOCIATED WITH
REPORT ELPP031/24

Attachment 1

Draft Notice of Determination

 9 October 2024

DOCUMENTS
ASSOCIATED WITH
REPORT ELPP031/24

Attachment 2

Appendix A - State Environmental Planning Policy (Transport and Infrastructure) 2021

 9 October 2024

DOCUMENTS
ASSOCIATED WITH
REPORT ELPP031/24

Attachment 3

Appendix B - Cumberland LEP 2021 -

 9 October 2024

DOCUMENTS
ASSOCIATED WITH
REPORT ELPP031/24

Attachment 4

Architectural Plans

 9 October 2024

DOCUMENTS
ASSOCIATED WITH
REPORT ELPP031/24

Attachment 5

Clause 4.6 Variation - FSR

 9 October 2024

DOCUMENTS
ASSOCIATED WITH
REPORT ELPP031/24

Attachment 6

Clause 4.6 Variation - Height

 9 October 2024

DOCUMENTS
ASSOCIATED WITH
REPORT ELPP031/24

Attachment 7

Redacted Submissions

 9 October 2024

 9 October 2024

Item No: ELPP032/24

Development Application - Church Street, Lidcombe

Directorate:                                       Environment and Planning  

Responsible Officer:                       Executive Manager City Planning and Development   

 

 

 

1.  Development Application No. DA2024/0153 was accepted on 22 April 2024 for the erection of demountable building and use as a gym, office space, training facilities and bathrooms adjoining to Lidcombe Oval at Wyatt Park.

2.  The application was publicly notified to occupants and owners of the adjoining properties for a period of 28 days between 2 May 2024 and 30 May 2024. In response, no submissions were received.

3.  Amended design were received on 28 August 2024 for the erection of demountable building and use as a gym adjoining to Lidcombe Oval at Wyatt Park.

4.  The amended design was publicly renotified to occupants and owners of the adjoining properties for 28 days between 29 August 2024 and 26 September 2024. In response, no submissions were received.

 

 

5.  The subject site is listed as a heritage item in the Cumberland Local Environmental Plan 2021 as Heritage Item I175 being “Wyatt Park Sporting Complex, stand of Eucalyptus microcorys and associated landscape” and item I187 being “stand of Eucalyptus microcorys”.

6.  The development was referred to Council’s Heritage Committee for comment who has raised no issue.

7.  The application is referred to the Cumberland Local Planning Panel for determination as the development is proposed on land managed by the Council on behalf of the Minster for Lands, resulting in a conflict of interest.

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

Subject Site and Surrounding Area

The subject site is known as Wyatt Park, Lidcombe and is accessed via Church Street to the west and Olympic Drive to the east. A rail corridor is located parallel to Church Street and the park is located within walking distance (approximately 400m) to Lidcombe railway station. The location of Wyatt Park is identified in Figure 1 in green below.

Wyatt Park contains numerous sporting and community facilities that serve the wider residents of the Local Government Area and Western Sydney. The Wyatt Park Plan of Management adopted since 2021 recognises that the ‘majority of the park currently operates below capacity’ with a number of dated and dilapidated facilities scattered throughout the park including a skate bowl, a former toilet block, the PCYC building, netball courts and a dilapidated toilet block.

The subject demountable structure is located to the northern side of Lidcombe Oval. The building is single storey in height proposed to be used as a gym for the Western Suburbs District Rugby League Football Club (Western Suburbs Magpies). The subject site is shown in Figure 1.

Figure 1 – Locality Plan of subject site

Figure 2 – Aerial view of subject site

Figure 3 – Existing Lidcombe Oval

Figure 4 – Location of existing change room and the proposed new demountable structure

Description of The Development

Council has received a development application for the erection of one demountable building and use as a gym by the Western Suburbs Magpies adjoining to Lidcombe Oval at Wyatt Park. The new building is a single storey structure elevated from the existing natural ground level located on the northern side of Lidcombe Oval and north-eastern side of the existing change room as shown in Figure 4 and 5.

Figure 5 – Location of new demountable structure

Figure 6 – Internal layout of the demountable structure

 

 

 

 

History

 

Application No.	Proposal	Determination	Date
DA2021/0054	Partial demolition of existing toilet block, reinstatement of landscaping and installation of a lockable power bollard	Approved by CLPP	15/07/2021
DA2022/0030	Addition of memorial sign to existing grandstand building at Lidcombe Oval Wyatt Park	Approved under Delegation	10/05/2022
DA2022/0188	S4.22 Concept Development Application for the construction of an indoor and outdoor recreation facility (Action Sports Campus) including the Stage 1 construction of an indoor/outdoor skate park.	Approved by CLPP	18/04/2023
DA2024/0085	Demolition of existing pergola and concrete slab, construction of a two storey dedicated training and performance indoor recreation facility known as the Auburn Basketball Centre including associated signage and landscaping works.	Approved by Regional Planning Panel	18/09/2024
MOD2024/0207	S4.55(1A) modification of Concept Development Application for the construction of a indoor/outdoor recreation facility - The Action Sports Campus - for a variety of active recreation and sports, particularly skate boarding, scooter and BMX biking.	Recently lodged	current
DA2024/0153	Erection of new demountable buildings containing a gym adjoining to Lidcombe Oval at Wyatt Park	Subject of this DA

Applicants Supporting Statement

The applicant has provided a Statement of Environmental Effects prepared by COSO Architecture dated March 2023 and was received by Council on 01/06/2024 in support of the application.

Contact With Relevant Parties

The assessing officer has undertaken site inspections of the subject site and surrounding properties on 23 May 2024 and 29 August 2024 and has been in regular contact with the applicant throughout the assessment process.

 

 

 

Internal Referrals

Public Spaces Planning and Design Team

The development application was referred to Council’s Public Spaces Planning and Design Team for comment who raised no objection to the proposed development and can be supported subject to recommended conditions.

Wyatt Park Plan of Management

The Wyatt Park Plan of Management (the plan) dated 13 April 2021 was adopted by Council on 5 May 2021 and provides a clear direction and framework for the future use and management of the park. The plan includes upgrade of the existing grandstand and amenities structure, as well as a new structure with change rooms, canteen/kitchen and storage etc. At such a time, the removal of more temporary structures may be considered. (Refer to Management Action A4 of the plan, page 70). Council’s Public Spaces Planning and Design Section has raised no objection to the proposed demountable structure as envisaged by the plan.

Tree Management

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

Heritage Advisory Committee

The development application was referred to Council’s Heritage Committee for comment who has provided no response. On this basis, it is considered that the Committee has no issue with the development from a heritage perspective.

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 condition and therefore can be supported subject to recommended conditions of consent.

External Referrals

Transport for NSW

The development application was referred to Transport for NSW (Sydney Trains) for comment given the subject site located adjacent to a rail corridor. The written correspondence dated 10 May 2024 confirmed Sydney Trains raised no concern with the proposed development works as the new structure is located away from the rail corridor and other railway infrastructures. 

Sydney Water

The development application was referred to Sydney Water for comment given the proposed demountable structures are being positioned near the 1200 RC stormwater channel. It is confirmed by Sydney Water that the development proposal is satisfactory and therefore can be supported subject to recommended 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:

·   

Potentially hazardous or potentially offensive development.

State Environmental Planning Policies (SEPPs)	Relevant Clause(s)	Compliance with Requirements
State Environmental Planning Policy (Biodiversity and Conservation) 2021.	Chapter 2 – Vegetation in non Rural Areas.	No tree removal is proposed as part of this development application and the removal of some ground cover to facilitate the proposed demountable building does not exceed the biodiversity offsets scheme threshold.   Therefore, the proposed vegetation removal is considered acceptable.
	Chapter 6 – Water Catchments.   Sydney Harbour Catchment.	It is determined that given location, a detailed assessment is not required given that there is no direct impact upon the catchment and no direct impact upon watercourses. As such, the development is acceptable under the new provisions that came into effect on 21/11/2022.
State Environmental Planning Policy (Resilience and Hazards) 2021.	Chapter 2 – Coastal Management.	The subject site is not identified as a coastal wetland or ‘land identified as “proximity area for coastal wetlands” or coastal management area.
	Chapter 3 –	Not applicable. The development as approved is not identified as being a potentially hazardous or offensive development.
	Chapter 4 – Remediation of Land.   Part 4.6.	A review of Council’s files has revealed that the site has been historically used for parks and open space purposes and there is no evidence to suggest that the site is contaminated or used for potentially contaminating activities.
State Environmental Planning Policy (Transport and Infrastructure) 2021.	Chapter 2 – Infrastructure.	Transport and Infrastructure SEPP 2021 is relevant to the development application as follows.   Clause 2.98 - Development adjacent to railway corridors   The application is subject to clause 2.98 of the Transport and Infrastructure SEPP 2021, because the subject site is located adjacent to an existing railway corridor and the development.   The development is not likely to have an adverse effect on rail safety, given the distance of the works to the corridor and the fact that the works are minor in nature. Further, the development does not involve the placing of a metal finish, will not involve the use of a crane in airspace above the rail corridor and is not located within 5 metres of an exposed overhead electricity powerline that is used for the purpose of railways or rail infrastructure facilities.   Clause 2.99 - Excavation in, above, below or adjacent to rail corridors   The proposed development does not involve any excavation works to a depth of 2m below ground level (existing), on land within, below or above a rail corridor, or within 25m (measured horizontally) of a rail corridor. As such, the provisions of Clause 2.99 of the Transport and Infrastructure SEPP 2021 are therefore not applicable.   Clause 2.100 - Impact of rail noise or vibration on non-rail development   Although the subject site is located immediately adjoining to a railway corridor, the proposed development is not for the purpose of residential accommodation, a place of public worship, a hospital or an educational establishment or centre-based child care facility. Therefore, the provisions of Clause 2.100 of this Transport and Infrastructure SEPP 2021 are not applicable in this instance.   Clause 2.119 - Frontage to classified road   The application is subject to clause 2.119 of the Transport and Infrastructure SEPP 2021  as Wyatt Park has frontage to Olympic Drive which is a classified road. Council is satisfied that consent to the development can be granted with respect to this clause noting that vehicles and machinery can gain access to the site via an alternative roadway being Church Street to the west. As such, the proposed development will not have a significantly adverse impact on the ongoing operation of Olympic Drive.   Clause 2.122 - Traffic generation developments   Having considered the scale of the proposed development works, the development application is not listed as a traffic generating development in accordance with Schedule 3 of this Transport and Infrastructure SEPP 2021 and no assessment against clause 2.122 will be required.

Local Environmental Plans

Cumberland Local Environmental Plan 2021

The provision of the Cumberland Local Environmental Plan 2021 (Cumberland LEP 2021) is applicable to the development proposal. It is noted that the development achieves compliance with the key statutory requirements of the Cumberland LEP 2021 and the objectives of the RE1 Public Recreation zone.

(a)     Permissibility

The proposed development is defined as ‘Recreation facilities (indoor)’ ancillary to the principal use of the Lidcombe Oval as a recreational area and is permissible in the RE1 Public Recreation zone with consent. The definition of a above land uses within the CLEP 2021 are:

recreation facility (indoor) means a building or place used predominantly for indoor recreation, whether or not operated for the purposes of gain, including a squash court, indoor swimming pool, gymnasium, table tennis centre, health studio, bowling alley, ice rink or any other building or place of a like character used for indoor recreation, but does not include an entertainment facility, a recreation facility (major) or a registered club.

In this regard, the proposal clearly fits the definition of a recreation facility (indoor) being a gym facility ancillary to the Lidcombe Oval and facilitate the site to become the home ground of the Western Suburbs Magpies. 

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

Figure 6 – CLEP 2021 Compliance Table

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))

Development Control Plans

Cumberland Development Control Plan 2021 (Cumberland DCP 2021)

Part G – Miscellaneous Development Controls of the Cumberland DCP 2021 is applicable to the proposed development. The proposal complies with the Cumberland DCP 2021 in full. A Cumberland DCP 2021 analysis will be attached as Appendix B to this report.

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 2021).

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 DCP 2021, and as a council-related Development Application the proposal was publicly notified for a period of 28 days between 2 May 2024 and 30 May 2024. No submissions were received in respect of the proposed development.

Subsequent to the receipt of the amended design, the proposal was publicly re-notified for another period of 28 days between 29 August 2024 and 26 September 2024. No submissions were received in respect of the proposed development.

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

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

CUMBERLAND LOCAL INFRASTRUCTURE CONTRIBUTIONS PLAN 2020

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

 

 

HOUSING AND PRODUCTIVITY CONTRIBUTION (HPC)

In accordance with Schedule 2 of the Order, the proposed development is exempt from the HPC, as it for the construction of demountable recreation facility (indoor) ancillary to the Lidcombe Oval.

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, Cumberland Local Environment Plan 2021 and Cumberland Development Control Plan 2021 and is considered to be satisfactory for approval subject to conditions.

The proposed development is appropriately located within the RE1 Public Recreation under the relevant provisions of the Cumberland Local Environmental Plan 2021. 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. The objectors will also be notified in writing of the outcome.

That Development Application No. DA2024/0153 for the erection of demountable building and use as a gym adjoining to Lidcombe Oval at Wyatt Park on land at Church Street, LIDCOMBE NSW 2141 be approval subject to conditions listed in Council’s assessment report.

1.      Draft Notice of Determination  

2.      Architectural Plans  

3.      Stormwater/Engineering Plans  

4.      Wyatt Park Plan of Management  

5.      Heritage Impact Statement  

6.      Appendix A - Cumberland Local Environmental Plan 2021 Assessment  

7.      Appendix B - Cumberland Development Control Plan 2021 Assessment   

 

DOCUMENTS
ASSOCIATED WITH
REPORT ELPP032/24

Attachment 1

Draft Notice of Determination

 9 October 2024

DOCUMENTS
ASSOCIATED WITH
REPORT ELPP032/24

Attachment 2

Architectural Plans

 9 October 2024

DOCUMENTS
ASSOCIATED WITH
REPORT ELPP032/24

Attachment 3

Stormwater/Engineering Plans

 9 October 2024

DOCUMENTS
ASSOCIATED WITH
REPORT ELPP032/24

Attachment 4

Wyatt Park Plan of Management

 9 October 2024

DOCUMENTS
ASSOCIATED WITH
REPORT ELPP032/24

Attachment 5

Heritage Impact Statement

 9 October 2024

DOCUMENTS
ASSOCIATED WITH
REPORT ELPP032/24

Attachment 6

Appendix A - Cumberland Local Environmental Plan 2021 Assessment

 9 October 2024

DOCUMENTS
ASSOCIATED WITH
REPORT ELPP032/24

Attachment 7

Appendix B - Cumberland Development Control Plan 2021 Assessment

 9 October 2024