13 November 2024

A meeting of the Cumberland Local Planning Panel will be held at 11.30am via Zoom on Wednesday, 13 November 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

 

 13 November 2024

CONTENTS

Report No.  Name of Report                                                            Page No.

Development Applications

ELPP033/24 Development Application - 6 Crawford Street, Berala............... 5

ELPP034/24 Development Application - 29 Reid Street, Merrylands.......... 183

ELPP035/24 Development Application - 10 Guernsey Street, Guildford..... 289

ELPP036/24 Development Application - 1 Tamplin Road, Guildford.......... 427

ELPP037/24 Development Application - 411 Great Western Highway,

................... Greystanes........................................................................ 515

 

 13 November 2024

Item No: ELPP033/24

Development Application - 6 Crawford Street, Berala

Directorate:                                Environment and Planning  

Responsible Officer:                   Executive Manager City Planning and Development   

 

 

1. Development Application No. DA2024/0243 was accepted on 24th June 2024 for the Demolition of existing structures and construction of a four storey co-living housing development comprising of 12 rooms with at grade parking pursuant to State Environmental Planning Policy (Housing) 2021.

2. The application was publicly notified to occupants and owners of the adjoining properties for a period of 14 days between 11th July 2024 and 25th July 2024. In response, a total of 26 submissions were received, 19 were unique submissions raising concerns/objections, including 1 petition.

3. The applicant submitted amended plans and documents on the 29th of August 2024.

4. The variations are as follows:

 

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

6. The application is recommended for refusal as discussed in the Council’s assessment report.

 

Subject Site and Surrounding Area

The site forms Lot 1 in DP 547418 and is known as 6 Crawford Street, Berala. The site is triangular in shape. It has an area of 515 square metres and has a frontage to Crawford Street of 45.822m. The site has a fall of approximately 1.97m from the rear south-eastern corner to the front north-western corner of the site.

The subject allotment is zoned R4 High Density Residential under the Cumberland Local Environmental Plan 2021.

A site inspection of the premises carried out on the 11 July 2024 confirmed that the site is currently occupied by a single storey detached dwelling and associated outbuilding.

The existing developments adjoining the site includes 2 storey detached dwellings to the north-east and south-east of the site within the R4 High Density Residential zone.  To the west across Crawford Street are 3 to 4 storey older style residential flat buildings within the R4 High Density Residential zone as well.

The subject is highlighted in purple on the following plan.

 

Figure 1 – Locality Plan of subject site [Source: Intramap]

Figure 2 – Aerial view of subject site [Source: NearMaps]

 

Figure 3 – Street view of subject site [Source: Site Inspection]

Description of The Development

Council has received a development application for demolition of existing structures and construction of a new 4 storey co-living development with at-grade parking and associated works. The detailed breakdown of the proposal is shown below:

Demolition:

·    Detached single storey dwelling;

·    Detached shed; and

·    Existing vehicular crossover on Council’s Road reserve along Crawford Street and associated driveway within the site.

Construction:

·    4 storey co-living development comprising:

·    6 x single co-living room;

·    6 x double co-living room;

·    Communal living area with manager’s workspace and kitchen;

·    Plant room;

·    At-grade garbage storage room;

·    Under croft at-grade car parking spaces for 2 vehicles;

·    Open at-grade car parking space for 1 vehicle located towards the end of the vehicular driveway next to the under croft car parking spaces along the southern side boundary; and

·    Access stairs and lift to access all levels.

Other aspects of the development:

·    Landscaped works

·    New vehicular crossover on Council’s Road reserve along Crawford Street and associated driveway within the site;

·    2 x at-grade motorcycle parking spaces;

·    4 x at-grade bicycle parking spaces;

·    2 x pedestrians access ramps from Crawford Street.

 

 

 

 

 

 

History

 

Applicants Supporting Statement

The applicant has provided an addendum Statement of Environmental Effects prepared by Think Planners dated 22nd August 2024 and was received by Council on 29th 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 on 11 July 2024 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 Senior Development Engineer for comment who has advised that the development is satisfactory subject to a deferred commencement consent in order for an easement creation with the downstream properties. 

Environmental Health

The development application was referred to Council’s Senior Environmental Health Officer for comment who has advised that the development is satisfactory 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 is satisfactory 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 no waste management plan was submitted to address the waste management during demolition, construction and ongoing use for Council’s consideration. In addition, the bulky waste room should be separated from the general waste bin storage room to comply with the Cumberland DCP 2021 control. It is considered that these issues could be resolved by conditions if the application was to be recommended for approval by Council. 

External Referrals

NSW Police – Auburn Police Area Command

The development application was referred to NSW Police Force for comment. The written correspondence dated 8 August 2024 confirmed NSW Police Force raised no objection to the proposed development works subject to recommended conditions of consent. 

Planning Comments

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

State Environmental Planning Policies

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

 

State Environmental Planning Policy (Housing) 2021 (Housing SEPP 2021)

As mentioned above, the Housing SEPP 2021 applies to the development and a comprehensive assessment of the Housing SEPP 2021 is provided at Appendix A. An assessment has been undertaken against the relevant provisions identified in Chapter 3 Part 3 Co-living housing and the following numerical variations have been identified:

·    Communal open spaces

Section 68(2)(d) - Developments shall provide at least 20% of the site area as communal open spaces (COS) each with minimum dimensions of 3 metres.

Planner’s Comments:

Based on a site area of 515 square metres, the proposal requires at least 103 square metres of communal open space with the minimum dimensions of 3 metres.

The applicant states that 107.6 square metres of communal open space is proposed to the north of the co-living housing on the ground floor.

A review of the amended landscaped plans confirmed the communal open space excluding the fire hydrant booster is 96.8 square metres which equates to a shortfall of 6.2 square metres (or 6.02% variation) to the non-discretionary development standard as shown in the figure below:

A Clause 4.6 variation was not submitted to address this matter.

Moreover, consideration has been given in relation to the usable part of the communal open space, in particular as the site is also undersized.

Whilst seatings, BBQ areas, are desirable features of communal open space, the dense planter beds, bicycle parking area and fire hydrant booster restrict the remaining usable area of open space. Therefore, only 62.9 square metres of principal usable part of communal open space will be provided for the proposed co-living housing development on this site. This presents a significant shortfall of 40.1 square metres or 38.93% variation to the required non-discretionary development standard for communal open space.

·    Minimum lot size

Section 69(1)(b)(ii) - Development consent must not be granted for development for the purposes of co-living housing unless the consent authority is satisfied that the minimum lot size for the co-living housing is not less than 800 square metres.

Planner’s Comments:

The site has an area of 515 square metres, which is a shortfall of 285 square metres of the minimum 800 square metres. This presents a 35.625% variation to the numerical standard. The Clause 4.6 variation submitted with the development application fails to demonstrate an acceptable co-living housing design that is compatible with the setback that satisfy the future desire character of the area and non-compliance with communal open space. The Clause 4.6 is further addressed in detail later in the report. Accordingly, Council is not satisfied that the variation request to the minimum lot size be supported.

·    Setbacks

Section 69(2)(a)(ii) - Development consent must not be granted for development for the purposes of co-living housing unless the consent authority considers whether the front, side and rear setbacks for the co-living housing are not less than the minimum setback requirements for residential flat buildings under a relevant planning instrument.

Planner’s Comments:

The subject site is triangular in shape and no rear property boundary can be identified. Therefore, the required front setbacks under Part B3 of the Cumberland DCP 2021 for no less than 6m to the front boundary or correspond with the existing prevalent building setback or with emerging setbacks in areas undergoing transition is applicable to the site.

The existing front setbacks of the adjoining 2 storey detached residential dwellings are measured 7.3 metres (4 Crawford Street) and 4.59 metres (6A Crawford Street) and the front setbacks for all developments along eastern side of Crawford Street within the R4 High Density Residential zone vary between 4.59 metres and 8.95 metres including detached residential dwellings and 2 storeys walk-up flats. Based on an average front setback of the adjoining properties at 4 Crawford Street and 6A Crawford Street, the minimum 5.945 metres front setback is required for the development.

A shown on the architectural plans, the proposed co-living housing will provide a minimum 2.4 metres front setback from Crawford Street frontage and presents a 59.63% variation to this standard. The proposed 2.4m setback is insufficient to allow for deep soil for tree or associated planting. In addition, the proposed shortfall causes adverse streetscape impact and is incompatible with the future desirable character of the area. In addition, the proposed 2.4 metres front setback from Crawford Street will not be consistent with the existing prevailing setback in the locality and the proposed variation will set an undesirable precedence that will enable future development to be setback closer to the front boundary. This will set an undesirable future character for the precinct, particularly in an area undergoing transition.

This non-compliance is considered excessive and is not supported for the reasons outlined above.

·    Building separation

Section 69(2)(b) - Development consent must not be granted for development for the purposes of co-living housing unless the consent authority considers whether the building will comply with the minimum building separation distances specified in the Apartment Design Guide (ADG) if the co-living housing has at least 3 storeys.

Planner’s Comments:

The ADG requires a 6 metre setback for habitable rooms (up to 12m, 4 storeys) from the side and rear boundary.

The proposed 4 storey co-living housing provides a setback from the habitable rooms of 3.006 metres from the south-eastern side boundary and 3.306 metres from the south-western side boundary.

The variation is considered acceptable in this instance given all habitable room windows above ground level and facing the side boundaries are incorporated with an angled blade walls that mitigates the direct sight line and overlooking onto the adjoining properties.

The side facing windows off the communal living area on the ground level will be screened by the boundary fence and plantings along the south-eastern side boundary.

Therefore, the variation to this standard will not result in adverse amenity issue to the adjoining properties which can be supported by Council if the application was to be supported.

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 fails to achieve compliance with the key statutory requirements of the Cumberland LEP 2021 and the objectives of the R4 High Density Residential zone.

(a)    Permissibility

The provision of the Cumberland Local Environmental Plan 2021 is applicable to the development proposal.

The proposed development is defined as ‘co-living housing’

co-living housing means a building or place that—

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

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

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

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

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

Pursuant to Section 67 of the Housing SEPP 2021, co-living housing development may be carried out with consent on land in a zone which development for the purposes of co-living housing, residential flat buildings and shop top housing is permitted under Chapter 5 or another environmental planning instrument. Residential Flat Buildings and shop-top housing are permitted with consent in an R4 High Density Residential zone under the Cumberland LEP 2021, and therefore the proposed development is permissible pursuant to Section 67 of the Housing SEPP 2021.

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

 

 

 

(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 application seeks to vary the development standard for minimum lot size for co-living housing under section 69(1)(b)(ii) of the Housing SEPP 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.

(a)    compliance with the development standard is unreasonable or    unnecessary in the circumstances.

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 has submitted a variation request of 515 square metres to the minimum lot size for co-living housing of 800 square metres. The applicant states that the proposal satisfies the objectives identified in the Housing SEPP 2021 and the Cumberland DCP 2021 in accordance with the Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 despite the non-compliance to the numerical development standard listed as follows:

“The objective of the clause is not identified expressly but is assumed to relate to ensuring that an adequately sized allotment is provided for a co-living development to achieve compliance with other desired planning controls. and inference can be drawn from Clause 4.1(1)(a) of the Cumberland DCP that sets out, in relation to minimum lot size:

a)     to ensure that new lots are able to accommodate development that is         consistent with development controls including adequate areas for vehicle    and pedestrian access, private open space and landscaping.

        The proposal is consistent with the underling objective given:

·    The proposal complies with relevant building envelope controls pertaining to height, setbacks, FSR and the like;

·    The proposal achieves compliance with the balance of the Housing SEPP provisions such that it is clear the site configuration- including dimensions and size, are sufficient to accommodate the development as proposed despite the departure;

·    The proposal complies with required landscaped areas;

·    The proposal complies with required parking for vehicles, motorcycles and bicycles; and

·    The proposal complies with the required communal open space.

Therefore, it is clear that the lot size is sufficient to cater for the development as proposed.

Notwithstanding the numerical departure the development is considered to be consistent with the intent of the clause and the underling objectives are satisfied.”

Planner’s Comments:

The proposed development is not consistent with principles (c) of the State Environmental Planning Policy (Housing) 2021 which is stipulated to ensure new housing development provides residents with a reasonable level of amenity.

As discussed in the report, the subject site is considered insufficient to accommodate sufficiently usable/functional communal open space on site and the front setback of the development is inconsistent with the existing streetscape and future desired character of the area.

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

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

b)  there are sufficient environmental planning grounds to justify the 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:

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

·   “The site is seeking to develop to its full zoning potential and as such has undertaken sustained and generous offers to purchase the adjoining land parcels mentioned above (4 Crawford Street, 20 The Crescent, and 6A Crawford Street). However, such attempts were unsuccessful and subsequently result in the subject site being an isolated land parcel.

·   The subject site and surrounding locality is zoned R4 High Density Residential with an FSR of 1.7:1 and a maximum building height limit of 18m. The reluctance of the adjoining property owners at 4 Crawford Street, 20 The Crescent, and 6A Crawford Street, Berala to sell their properties to allow for amalgamation has left the subject site and the aforementioned properties as the only lots within the immediate locality which have not been redeveloped for higher density residential development.

·   The subject site and the aforementioned properties are the ‘last’ of the street block to transition from an existing dwelling to higher densities and the departure to the lot size standard facilitates a more suitable urban design and character response from the site within an R4 context; and

·   The development proposes a modest 12 room co-living development relative to what is permitted on the site, in order to mitigate any potential impacts to the adjoining properties and the environment. This is illustrated by the following metrics:

-    The development is permitted an FSR of 1.87:1 (including 10% co-living bonus) and proposes a modest FSR of 0.81:1.

-    The development is permitted a maximum building height of 18m (5-6 storeys) and proposes a building height of 14.3m (4 storeys).

Therefore, it can be seen that the variation to the lot size has sufficient environmental planning grounds because the variation to the standard enables the site to develop for a higher density residential development form and to deliver diverse housing options and strict compliance would prevent this because amalgamation with adjoining properties is not possible.”

Planner’s Comments:

The applicant’s justification is not considered to be well founded. The proposal is not consistent with fifth objective of the R4 High Density Residential land use zone of the Cumberland LEP 2021. The subject site is 515 square metres which equates to a variation of 35.625% to the minimum 800 square metre requirement for co-living housing under the State Environmental Planning Policy (Housing) 2021.

Despite the undersized lot, the proposal fails to incorporate sufficient communal open space excluding the fire hydrant booster area and bicycle parking area to service the proposed co-living housing development on site.

The existing streetscape along eastern side of Crawford Street is dominated by well setback residential developments (mostly over 6m) with landscape / planting within the front setback area. However, as shown on the architectural plans and landscaped plan, majority of the front setback area has been designed to become the concrete paving for driveway, at-grade car park, motorcycle parking and bicycle parking which limited the provision of soft permeable landscaped to soften the bulk and scale of the proposed 4 storey development from the existing streetscape. This results in adverse streetscape and visual amenity from the existing neighbourhood and is considered incompatible with the existing streetscape and the desired future character.

Conclusion

As the applicant’s justification of the minimum lot size has not satisfied the test under Clause 4.6, the applicant’s justification is not well founded. Council is not satisfied that the applicant’s written request has adequately addressed the matters required to be demonstrated by Clause 4.6 subclause (3).

Furthermore, the applicant has not provided any written justification to satisfy Clause 4.6 requirements to contravene the shortfall of the communal open space and does not satisfy Section 35B of the Environmental Planning and Assessment Regulation 2021.

As discussed in the report above, only 96.8 square metres of communal open space which equates to a shortfall of 6.2 square metres (or 6.02% variation) to the non-discretionary development standard is provided. Added this numerical shortfall to the communal open space, the proposal only provides 62.9 square metres of usable/functional communal open space that meets the minimum 3m x 3m dimension excluding fire hydrant booster and dense landscape planter bed area. In the absence of any Clause 4.6 written request, the consent authority cannot grant consent to the proposed development. 

In regard to the above, the proposal is not supported by Council and the discussion above form part of the reasons of refusal.

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))

Cumberland Development Control Plan 2021 (Cumberland DCP 2021)

The Cumberland DCP 2021 does not specify any development control for co-living housing development within the local government area. However, given the subject site is zoned as R4 High Density Residential under the Cumberland LEP 2021, the residential flat building controls being Part B3 of the Cumberland DCP 2021 are the most applicable development controls to inform the built form for this development. The assessment against all relevant part of the Cumberland DCP 2021 confirmed the proposed development is not considered acceptable from an environmental planning viewpoint. A comprehensive Cumberland DCP 2021 assessment is contained in Appendix C.

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

 

Clause	Control	Proposed	Complies
Part A3 Section 3	2 valuations and evidence of offers shall be submitted with the DA.	2 valuations dated 13 August 2024 are submitted to Council but no documentary evidence submitted to Council confirming the offers based on the latest valuation reports were delivered to the neighbouring property owners.   Whilst Part B3 of the Cumberland DCP 2021 stipulated the minimum lot size for residential flat building of 1,000 square metres, the minimum lot size for co-living housing development identified in Part 69(1)(b)(ii) of the Housing SEPP 2021 prevails and applies to this proposal.   The subject site with lot size of 515 square metres is considered undersized to satisfy the minimum lot size of 800 square metres for co-living housing development.    Whilst the amended Statement of Environmental Effects stated updated offers were delivered to the neighbouring property owners on 18 August 2024 and perspectives plans have been provided to demonstrate the neighbouring isolated properties can be developed to accommodate a reasonably design, bulk and scale residential flat building developments, no documentations or evidence has been provided to Council confirming this matter. Therefore, the control is not satisfied in this instance.	No
Part B3 Section 3.1 Control C2	Front setback – No less than 6m or correspond with the existing prevalent building setback or with emerging setbacks in areas undergoing transition.	As discussed above, the average front setback of the adjoining properties is 5.945m to correspond with the existing prevalent building setback.   The co-living housing is proposing 2.4m setback from Crawford Street frontage which presents 59.63% variation to this standard that creates adverse streetscape impact and is incompatible with the future desirable character of the area. As such, the proposed variation creates undesirable precedence that may encourage future development to be setback closer to the front boundary particularly in an area undergoing transition.   Therefore, variation to this development control is not acceptable and cannot be supported by Council.	No

As indicated in the compliance table above, the proposed development departs from controls in Parts A3 and B3 of the Cumberland DCP 2021. Having regard to these departures, it is considered that the proposal performs unsatisfactorily from an environmental planning viewpoint as detailed in the above table. The non-compliances form part of the reasons for refusal.

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

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

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

The proposed development fails to address the relevant matters arising from Section 35B and Section 85 of the Environmental Planning and Assessment Regulations 2021 in terms of absence of a Clause 4.6 to justify contravention of the shortfall to the communal  open space. The application is therefore recommended for refusal.

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

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

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

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

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

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 11 July 2024 and 25 July 2024. The notification generated 26 submissions, of which, 19 were unique submissions, including 1 petition with 3 signatories and all objecting to the proposal with no submissions disclosing a political donation or gift.

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))

The proposal is contrary to the public interest due to the likely environmental impacts of the development, which are considered unacceptable. It is considered that the development as proposed would not be consistent with the public interest.

CUMBERLAND LOCAL INFRASTRUCTURE CONTRIBUTIONS PLAN 2020

The development would require the payment of contributions in accordance with Cumberland Local Infrastructure Contributions Plan 2020. In accordance with the Contribution Plan a contribution of $67,069.00 is payable, pursuant to Section 7.11 of the EP&A Act 1979, as calculated on the cost of works should the Panel support the application.

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

HOUSING AND PRODUCTIVITY CONTRIBUTION (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 payment of the HPC given co living housing is defined as commercial development under the Environmental Planning and Assessment (Housing and Productivity Contributions) Order 2024.

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

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 (Biodiversity and Conservation) 2021, State Environmental Planning Policy (Housing) 2021, State Environmental Planning Policy (Resilience and Hazards) 2021, State Environmental Planning Policy (Transport and Infrastructure) 2021, Cumberland Local Environmental Plan 2021 and Cumberland Development Control Plan 2021.

It is considered that the proposed development is unacceptable for the reasons outlined in this report. It is recommended that the development be refused.

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 minimum lot size standard pursuant to Section 69(1)(b)(ii) of the State Environmental Planning Policy (Housing) 2021 is not supported.

2. That Development Application No. DA2024/0243 for demolition of existing structures and construction of a four storey co-living housing development comprising of 12 rooms with at grade parking pursuant to State Environmental Planning Policy (Housing) 2021 on land at 6 Crawford Street, BERALA NSW 2141 be refused for the reasons 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.     Architectural Plans, Shadow Diagrams and Landscape Plan  

3.     Stormwater/Engineering Plans  

4.     Redacted Submissions  

5.     Clause 4.6 Variation Request - Minimum Lot Size  

6.     Plan of Management  

7.     Appendix A - Housing SEPP 2021 & ADG Assessment  

8.     Appendix B - Cumberland LEP 2021 Assessment  

9.     Appendix C - Cumberland DCP 2021 Assessment   

 

DOCUMENTS
ASSOCIATED WITH
REPORT ELPP033/24

Attachment 1

Draft Notice of Determination

 13 November 2024

DOCUMENTS
ASSOCIATED WITH
REPORT ELPP033/24

Attachment 2

Architectural Plans, Shadow Diagrams and Landscape Plan

 13 November 2024

DOCUMENTS
ASSOCIATED WITH
REPORT ELPP033/24

Attachment 3

Stormwater/Engineering Plans

 13 November 2024

DOCUMENTS
ASSOCIATED WITH
REPORT ELPP033/24

Attachment 4

Redacted Submissions

 13 November 2024

DOCUMENTS
ASSOCIATED WITH
REPORT ELPP033/24

Attachment 5

Clause 4.6 Variation Request - Minimum Lot Size

 13 November 2024

DOCUMENTS
ASSOCIATED WITH
REPORT ELPP033/24

Attachment 6

Plan of Management

 13 November 2024

DOCUMENTS
ASSOCIATED WITH
REPORT ELPP033/24

Attachment 7

Appendix A - Housing SEPP 2021 & ADG Assessment

 13 November 2024

DOCUMENTS
ASSOCIATED WITH
REPORT ELPP033/24

Attachment 8

Appendix B - Cumberland LEP 2021 Assessment

 13 November 2024

DOCUMENTS
ASSOCIATED WITH
REPORT ELPP033/24

Attachment 9

Appendix C - Cumberland DCP 2021 Assessment

 13 November 2024

 13 November 2024

Item No: ELPP034/24

Development Application - 29 Reid Street, Merrylands

Directorate:                                Environment and Planning  

Responsible Officer:                   Executive Manager City Planning and Development   

 

 

1. Development Application No. DA2024/0333 was accepted on 18 July 2024 for the demolition of existing structures and construction of a two-storey dwelling and detached secondary dwelling.

2. The application was publicly notified to occupants and owners of the adjoining properties for a period of 14 days between 25 July 2024 and 8 August 2024. In response, no submissions were received.

3. The subject application has been assessed against the relevant provisions of the Environmental Planning and Assessment Act 1979, the State Environmental Planning Policy (Housing) 2021 (SEPP Housing 2021), the Cumberland Local Environmental Plan 2021(CLEP 2021) and the Cumberland Development Control Plan 2021 (CDCP 2021).

4. The variations are as follows:

 

5. The application is referred to the Panel as the proposal contravenes a development standard by more than 10% (minimum lot size for a detached secondary dwelling under clause 53(2)(a)SEPP (Housing) 2021).

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

Subject Site and Surrounding Area

The site is legally defined as Lot 44 Sec 5 in DP 1118 and is known as 29 Reid Street MERRYLANDS NSW 2160. The site has an area of 386.4m2 and a frontage to Reid Street of 12.19m. The site is relatively flat in topography. 

A site inspection of the premises was carried out on 4 September 2024, and it was confirmed that the site is currently occupied by a single storey rendered dwelling house with tiled roof and detached structures including decks, awnings, sheds and associated hard paved areas. No trees are located within the subject site or on council’s nature strip. A Sydney water sewer traverses the site towards the rear.

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

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

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

Figure 3 – Street view of subject site

Description of The Development

Council has received a development application for demolition of existing structures and construction of a two storey residential dwelling with detached secondary dwelling. The detailed breakdown of the proposal is shown below:

 

 

Demolition of existing structures:

·    Single storey rendered dwelling house with tiled roof and ancillary attached and detached structures including decks, awnings, detached shed structures and associated hard paved areas.

Construction of a two storey dwelling consisting of:

·    Ground Floor

-    Front Patio/ Foyer area;

-    Single garage;

-    Hallway and staircase to first floor;

-    Powder room;

-    Bathroom;

-    One (1) Master bedroom with WIR and ensuite;

-    Lounge room;

-    One (1) bedroom;

-    Open planned living, dining and kitchen with WIP pantry;

-    Laundry/ bathroom; and

-    Rear alfresco area (servicing the open living area).

·    First Floor

-    One (1) Master bedroom with WIR and ensuite;

-    One (1) bedroom with ensuite;

-    Two (2) standalone bedrooms;

-    Family area;

-    One (1) common bathroom;

-    Staircase to ground floor; and

-    Balcony fronting Reid Street servicing the master bedroom and family room.

Construction of a single storey detached Secondary dwelling comprising of the following: 

·    Open Living, Kitchen, and Dining area;

·    Two (2) bedrooms (standalone);

·    Bathroom; and

·    Laundry area.

History

There are no Environment Protection Orders or relevant historical approvals associated with the subject site.

Applicants Supporting Statement

The applicant has provided a Statement of Environmental Effects dated 12th of June 2024 in support of the application.

The applicant has also submitted a Clause 4.6 statement prepared by Brosnan & Moore Town Planning Services, Revision 2, dated 10 July 2024 which was received by Council on 10 September 2024 in support of the application. The applicant has submitted a clause 4.6 variation request for a deviation to the minimum lot size for a secondary dwelling under the State Environmental Planning Policy (Housing) 2021.

Contact With Relevant Parties

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

Internal Referrals

No internal referrals were required for this development application.

External Referrals

Sydney Water Cooperation

Due to the presence of a sewer line traversing the rear of the site, the development application was referred to Sydney Water for comment. Sydney Water did not raise any objections to the proposed development subject to the inclusion of conditions in any consent.

Planning Comments

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

State Environmental Planning Policies

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

 

Statement Environmental Planning Policy (Housing) 2021

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

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

 

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 subject site is zoned R2 Low Density Residential. The proposal is for the demolition of existing structures and construction of a two-storey dwelling and the erection of a ‘secondary dwelling’ which is a prohibited land use under the CLEP 2021. However, pursuant to Clause 50 of State Environmental Planning Policy (Housing) 2021 the following applies:

“… development for the purposes of a secondary dwelling on land in a residential zone if development for the purposes of a dwelling house is permissible on the land under another environmental planning instrument.”

As per the definitions within this division of the SEPP, a residential zone includes the R2 Low Density Residential Zone. A dwelling house is a permissible land use within the R2 zone under the CLEP 2021. In this regard, a secondary dwelling is permissible with consent within the R2 zoned land under the provisions of the SEPP (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 CLEP 2021 assessment is contained in Attachment 4.

(b)    Clause 4.6 – Variation to Clause 53(2)(a) of SEPP (Housing) 2021 - Minimum Site Area

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 minimum site area requirement of 450m2 for a detached secondary dwelling as required by Clause 53(2)(a) of State Environmental Planning Policy (Housing) 2021. The subject lot has a site area of 386.4m2 which varies the standard by 63.6m2. This equates to a 14.13% variation.

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 relies on Wehbe test 1 “objectives of the development standard are achieved notwithstanding non-compliance with the standard”. The applicant contends that the proposed development aligns with the objectives of the R2 zoning by addressing the housing needs of the community within a low-density residential area. The secondary dwelling is designed and situated to maintain the amenity of future occupants, the primary dwelling, and surrounding residents. It is positioned to ensure adequate solar access to its living areas, which are located on the eastern side of the dwelling.

The secondary dwelling is appropriately located in the rear yard, preserving the site's private open space and deep soil zones. Sufficient separation between the primary and secondary dwellings minimizes privacy impacts. Being single storey, the secondary dwelling reduces privacy and overshadowing concerns for neighbouring properties and the primary dwelling.

Importantly, the proposed development does not introduce any additional non-compliance with development standards and adheres to site coverage, setbacks, landscaping, and deep soil controls. This further supports its consistency with the R2 zoning objectives by preserving the existing landscaped character of the surrounding environment.

Furthermore, the applicant contends that the proposal is consistent with the principles of the Housing SEPP 2021 as follows:

a)  The variation facilitates a diverse range of housing options by adding a secondary dwelling alongside the primary dwelling, which can serve as low-cost rental housing.

b)  The secondary dwelling offers an affordable housing option for vulnerable community members.

c)  The proposed secondary dwelling design ensures a suitable level of amenity for future residents.

d)  The proposed location benefits from existing infrastructure and services.

e)  The development includes a BASIX certificate, confirming compliance with environmental standards set by SEPP BASIX 2023.

f)   The design minimizes impacts on neighbouring residents by being set back from the street and screened by the primary dwelling, preserving the local character.

g)  The secondary dwelling can serve as affordable short-term or long-term rental accommodation.

h)  The proposal enhances the existing affordable housing stock rather than reducing it.

Planner’s Analysis:              

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

The applicant contends that 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 assessment of numerical non-compliance is informed by the NSW LEC case Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90, where Justice Pain upheld Commissioner Pearson's decision.

To align with objective 1(b) of Clause 4.6, it is argued that allowing flexibility in this development will yield better outcomes. The proposal is expected to enhance amenity for future residents on this suitably designated site.

The non-compliance pertains to the minimum site area required under SEPP Housing 2021. If the proposed secondary dwelling meets the relevant standards in SEPP Housing 2021, CLEP 2021, and Cumberland DCP, then a flexible approach to the minimum site area is warranted.

Rigid adherence to this requirement could hinder better design outcomes since the proposed dwelling already aligns well with applicable controls.

The key reasons for supporting the variation to the site area control includes the following:

·   The design minimises impacts on neighbouring and future properties.

·   Strict compliance would not yield significant benefits and could diminish resident amenity, as the difference between compliant and proposed designs is minimal.

·   There is a discrepancy between SEPP and CDCP 2021; the DCP allows a minimum site area of 380m² for secondary dwellings, suggesting flexibility for sites smaller than 450m².

In summary, enforcing the minimum site area requirement would impose an unreasonable burden on the development without identifiable amenity impacts resulting from the non-compliance.

Planner’s Analysis:

Council considers that the development will protect the amenity of residents within the development and the adjoining properties subject to conditions of consent. The bulk and scale of the development is such that surrounding properties will receive sufficient solar amenity and the site is sufficient in area such that compliance is achieved with the controls in the CDCP 2021 including private open space, site coverage and deep soil zone.

Council is in agreement with the applicant that strict enforcement and compliance with the lot size development standard is unreasonable and unnecessary in the context of the subject application. The development is otherwise consistent with the principles of the State Environmental Planning Policy (Housing) 2021 and meets the objectives outlined for R2 Zoned Land.

It is Council’s view that a lot of at least 380 m² in size is sufficient to accommodate a secondary dwelling. This is demonstrated as local controls in CDCP2021, Part B, Section 2.21, C7.

Council considers the applicants justification to be well founded and the subject site to be appropriate in size to accommodate the proposed development and that there are sufficient environmental planning grounds to vary the 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))

Cumberland Development Control Plan 2021 (CDCP 2021) Part B – Development in Residential Zones and Part G – Miscellaneous Development Controls of the CDCP are applicable to the proposed development. The proposal complies with the requirements of the CDCP with the exception of controls relating to minimum front setback requirements within Part B of the CDCP 2021. The variations are considered on merit, as discussed below. A full CDCP 2021 analysis are attached under Attachment 5.

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

Figure 4 – Cumberland DCP 2021 - Compliance Table.

As indicated in the compliance table above, the proposed development departs from Part B, Section 2.1, Control 1 provision of CDCP 2021.

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

Front Setback

Part B1 of CDCP2021, Section 2.1, Control 1

This control under CDCP 2021 specifies that a minimum 6m front setback to the building line is required. Additionally, a balcony, deck or the like can protrude within the front setback by 900mm. The proposed front setback is 4.6m to the outside face of the front porch (corner of pier).

The proposed 4.6m front setback to the outside face of the porch departs from the requirement by 1.4m, resulting in a variation of 23.33%. As for the second part of the requirement, the front porch protrudes 1.4m into the building line. The non-compliance in this regard amounts to 500mm resulting in a variation of 55.5%. However, it has been demonstrated that consistency with the prevailing streetscape character is maintained in terms of bulk and scale and building separation to allow for sufficient amenity to the subject development and surrounding properties as detailed by the submitted sun shadow diagrams. The subject site also adjoins a corner lot with the existing and any future development having a reduced setback to Reid Street, being that site’s secondary frontage.  The departure from the control is of minimal impact given that compliance is achieved with respect to landscaping, private open space and site coverage. In this regard the variation to the front setback requirements is accepted on merit.

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

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

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

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

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

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

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

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

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

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 6 October 2023 and 20 October 2024. As a result of the public exhibition of the application Council received nil (0) submissions.

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

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 $10,883.00 would be payable prior to the issue of a Construction Certificate.

HOUSING AND PRODUCTIVITY CONTRIBUTION (HPC)

In accordance with the HPC Order, the proposed development is exempt from paying a contribution as it does not generate additional infrastructure demand and is solely for the demolition of existing structures and construction of a two-storey dwelling and detached 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 development application has been assessed in accordance with the relevant requirements of the Environmental Planning and Assessment Act 1979, State Environmental Planning Policy (Housing) 2021, Cumberland LEP 2021, and Cumberland DCP 2021, and is considered to be satisfactory for approval subject to the conditions of the development consent.

The proposed development is appropriately located within the R2 Low Density Residential zone under the relevant provisions of the Cumberland LEP and State Environmental Planning Policy (Housing) 2021. The proposal is consistent with all statutory and non-statutory controls applying to the development. Minor non-compliances with Council’s DCP 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 vary the minimum lot size for a detached secondary dwelling development standard, pursuant to Clause 53(2)(a) of State Environmental Planning Policy (Housing) 2021, be supported.

2. That Development Application No. DA2024/0333 for the demolition of existing structures and construction of a two-storey dwelling and detached secondary dwelling on land at 29 Reid Street, MERRYLANDS NSW 2160 be approved subject to conditions listed in the attached schedule.

1.     Draft Notice of Determination  

2.     Architectural Plans  

3.     Clause 4.6 Variation Request  

4.     Cumberland LEP Assessment Table  

5.     Cumberland DCP Assessment Table   

 

DOCUMENTS
ASSOCIATED WITH
REPORT ELPP034/24

Attachment 1

Draft Notice of Determination

 13 November 2024

DOCUMENTS
ASSOCIATED WITH
REPORT ELPP034/24

Attachment 2

Architectural Plans

 13 November 2024

DOCUMENTS
ASSOCIATED WITH
REPORT ELPP034/24

Attachment 3

Clause 4.6 Variation Request

 13 November 2024

DOCUMENTS
ASSOCIATED WITH
REPORT ELPP034/24

Attachment 4

Cumberland LEP Assessment Table

 13 November 2024

DOCUMENTS
ASSOCIATED WITH
REPORT ELPP034/24

Attachment 5

Cumberland DCP Assessment Table

 13 November 2024

 13 November 2024

Item No: ELPP035/24

Development Application - 10 Guernsey Street, Guildford

Directorate:                                Environment and Planning  

Responsible Officer:                   Executive Manager City Planning and Development   

 

 

1. Development Application No. DA2023/0679 was lodged on the 21 February 2024 for the demolition of existing structures and construction of a two storey building for the purpose of a sex services premises to operate 24 hours/7 days a week, ground level car parking for six (6) vehicles, six (6) work/service rooms and associated business identification signage.

2. The application was publicly notified to occupants and owners of the adjoining and surrounding properties for a period of 14 days between the 8 March 2024 and 22 March 2024. In response, no submissions were received.

3. On 27 May 2024, the application was modified by the applicant by deleting one (1) work/service room and one (1) car parking space. On 25 June 2024, the applicant revised the plan of management in which the maximum number of sex workers on the site was confirmed to be consistent with the architectural plans. These changes did not require re-notification.

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

5. A variation is sought to the location of sex services premises within 200 metres of residential zoned land pursuant to Clause 6.8 of the Cumberland Local Environmental Plan 2021. It is acknowledged that the site is approximately 174 metres from residential zoned land under the Cumberland Local Environmental Plan 2021 and approximately 116 metres from residential zoned land in the adjoining Fairfield local government area. The Clause 4.6 variation request is considered sufficient and well founded as discussed elsewhere in the report.

6. The variations are as follows:

 

7. The application is referred to the Panel as the proposed sex services premises is a sensitive development and also seeks to vary, by more than 10%, a development standard.

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

Subject Site and Surrounding Area

The subject site is legally described as Lot 10 in DP7419, and is commonly known as 10 Guernsey Street, Guildford. The site is located on the southern side of Guernsey Street between Military Road to the east and Byron Road to the west.

The site has the following dimensions:

Northern (Guernsey Street) frontage         12.19 metres.

Eastern and western (side) boundaries      33.53 metres.

Southern (rear) boundary                          12.19 metres.

The site has an area of 404.7 square metres and the site has a fall of approximately 0.24 metres or 0.7% to the rear southern boundary from the northern Guernsey Street boundary.

The subject site is zoned E4 General Industrial under the Cumberland Local Environmental Plan 2021.

The subject site currently maintains a single storey building used as a sex services premises approved under Development Consent No.2012/122/1. The site has a vegetation strip maintained to the front setback area to Guernsey Street. The site is surrounded by two storey industrial premises and the Yennora Distribution Park approximately 130 metres to the west of the site.

The location of the site is shown below edged in red in Figure 1.

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

Figure 2 – Zoning map of the site (highlighted in yellow) and proximity of residential zoned land to the north under the Cumberland LEP 2021. Note residential zoned land under Fairfield local government area is to be south and southeast of the railway line. Source: NSW Planning Portal Spatial Viewer

 

Figure 3 - Aerial view of the site (highlighted) and locale. Source: NearMaps dated 3 September 2024

Figure 4 – View existing sex services premises on the subject site. Source: Photo taken 6 May 2024.

 

Description of The Development

As amended, Development Application 2023/0679 is proposing the demolition of existing structures and construction of a two-storey building for the purpose of a sex services premises to operate 24 hours/7 days a week, ground level car parking for five (5) vehicles, five (5) work/service rooms and up to eight (8) sex workers at night with one (1) manager/receptionist and associated business identification signage.

A detailed summary of the proposal is provided below:

Earthworks

·    Site preparation for the building.

Demolition

·    Demolition of the existing on-site building and all existing on-site structures.

Tree retention

·    Retention of one (1) Corymbia citriodora (Lemon Scented Gum) within the front portion of the property.

Construction of a sex services premises

Ground Floor level (RL 22.75)

·    One (1) disabled/accessible work/service room with accessible bathroom with toilet and shower.

·    Security check entry area.

·    Vehicular car parking for five (5) car parking spaces including one (1) accessible with vehicular access from Guernsey Street.

·    Bin storage room adjacent to the shared zone with bollard.

·    Passing bay opposite parking spaces numbered 1 and 2 near the roller door.

·    Two (2) bicycle racks/spaces.

·    Two (2) stairs.

·    Landscaped area within the front setback facing Guernsey Street frontage.

·    On-site detention basin above ground with retaining wall (top of wall minimum RL 23.45) within the front setback.

·    A 5,000L rainwater tank between the on-site detention basin and the external wall of the disabled/accessible work/service room.

·    Widening to the existing vehicular crossing to 5.5m vehicular crossing and associated driveway off Guernsey Street.

 

 

First Floor level (RL 25.525)

·    Four (4) work/service rooms with bathroom with toilet and shower.

·    Kitchen with dining table/area and walk-in-pantry.

·    Three (3) additional storage rooms accessible from main corridor.

·    Storeroom 1 with linen area.

·    One (1) laundry room with linen area.

·    Two (2) customer waiting rooms with bathrooms with waiting room 2 with fixed lockers.

·    Two (2) staff/sex workers waiting rooms with lockers, shared bathroom and one (1) additional staff safe room.

·    One (1) staff/sex workers room with lockers.

·    One (1) office/reception room.

·    Communications room.

·    Buddha statue shelving area in the main corridor.

·    Two (2) stairs.

Hours of operation

·    24 hours, seven days a week.

Staff/sex workers

·    Five (5) sex workers during the day and up to eight (8) sex workers during Friday and Saturday nights with one (1) manager/receptionist.

Front fence

·    New 1.5m high metal front fence on top of 300mm high retaining wall between the driveway and the eastern boundary.

Business identification signage

·    One (1) illuminated building identification sign ‘Dream No 10’ approximately 5.3 metres above the ground level measuring 750mm x 1400mm and affixed to the front façade of the building between window W-02 and window W-03.

History

·    On the 3 October 2012, Council granted delegated approval to Development Consent No.2012/122/1 for alterations and additions to the existing building for use as a brothel.

·    On the 8 May 2019, the Cumberland Local Planning Panel granted approval to Section 4.55(2) modification DA2012/122/3 to remove trial period requirements (Condition 9) and increase hours of operation of an existing sex services premises to 24 hours and 7 days a week (Condition 69).

·    On the 3 August 2020, Council staff granted delegated approval to MOD2020/0140 being a Section 4.55(1A) modification application seeking to delete condition No. 9 relating to a trial period for hours of operation, so as to allow for permanent operation of the existing approved brothel 24 hours a day, 7 days a week.

·    On the 11 July 2023, Council held a pre-lodgement meeting with the applicant’s representatives for pre-lodgement application PL2023/0042 for demolition of existing building and construction of a new two storey structure for a sex services premises and covered car parking.

·    On the 21 February 2024, Development Application No. 2023/0679 was lodged with Council which is the subject of this report.

Applicants Supporting Statement

The applicant has provided a Statement of Environmental Effects, prepared by Boston Blyth Fleming Pty Ltd, dated October 2023 and a supplementary Statement of Environmental Effects, prepared by Boston Blyth Fleming Pty Ltd, dated 21 May 2024 which were uploaded via the NSW Planning Portal to Council on the 10 November 2023 and 27 May 2024, respectively, and in support of the application.

Contact With Relevant Parties

The assessing officer has undertaken site inspections 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 the design of the stormwater drainage with an above ground rainwater tank and OSD basin can be supported subject to recommended conditions of consent.

Environmental Health

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

Waste Management

The development application was referred to Council’s Waste Management Officer for comment who has advised that the submitted waste management plan is satisfactory.

External Referrals

NSW Police (Cumberland Police Area Command)

The development application was referred to NSW Local Area Command for comment in order to facilitate the incorporation of Crime Prevention Through Environmental Design (CPTED) principles into the proposal. In the correspondence dated 7 March 2024, NSW Police raise no further comment to this development application as the proposal is similar to the sex services premises approved by Council under DA2012/122 which was subsequently modified under MOD2020/140.

Planning Comments

State Environmental Planning Policies

The proposal is affected by the following State Environmental Planning Policies:

State Environmental Planning Polices (SEPPs)	Relevant sections(s)	Compliance with Requirements
State Environmental Planning Policy (Biodiversity and Conservation) 2021	Chapter 2 – Vegetation in non-Rural Areas	Yes, the development application does not seek to remove any additional trees from the site. Council’s Tree Management Officer reviewed the proposal and noted the retention of one (1) tree and two (2) trees proposed to be removed from the site and located within the front of the site have been cut to stumps and that these trees were classified as exempt species as they were less than 2 metres from a building. The proposal does not trigger the provisions of Chapter 2.
	Chapter 6 – Water Catchments   Georges River Catchment	The site is flood control lot affected by the probable maximum flood (PMF). Council’s Development Engineer has reviewed the proposal and advised 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 subject to stormwater and flood related conditions which are imposed on the Notice of Determination.
State Environmental Planning Policy (Industry and Employment) 2021	Chapter 3 Advertising and Signage	The proposed signage is compatible with the desired amenity and visual character of an industrial area. The proposed signage provides effective communication in a suitable location. However, a condition shall be imposed ensuring the size of the signage complies with Part E5 of the CDCP 2021. i)               A comprehensive assessment against the assessment criteria specified in Schedule 5 of the State Environmental Planning Policy (Industry and Employment) 2021 is contained in Appendix 2.
State Environmental Planning Policy (Resilience and Hazards) 2021	Chapter 2 – Coastal Management	The subject site is not identified as a coastal wetland or ‘land identified as “proximity area for coastal wetlands” or coastal management area.
	Chapter 4 – Remediation of Land   Section 4.6	A remediation action plan (RAP) was prepared by ECON Environmental Pty Ltd, reference: 24-1796, dated 20 September 2024. The remediation method for the site is to excavate and remove all contaminated soils from the site with all waste to be classified. Council’s Senior Environmental Health Officer is satisfied that the site is suitable for the development. As such, it is considered that the development application is satisfactory under Section 4.6(1)(a) of Chapter 4 of the State Environmental Planning Policy (Resilience and Hazards) 2021.
State Environmental Planning Policy (Sustainable Buildings) 2022	Chapter 3 – Standards for non-residential development	State Environmental Planning Policy (Sustainable Buildings) 2022 sets sustainability standards of buildings across NSW for residential and non-residential development. The Sustainable Buildings SEPP was notified on 29 August 2022 and came into effect on 1 October 2023 to allow for the relevant industry to adjust to the new standards.   Chapter 3 of SEPP (Sustainable Buildings) 2022 does not apply to this development as the estimated development cost is less than $5 million.
State Environmental Planning Policy (Transport and Infrastructure) 2021	Chapter 2 – Infrastructure   Division 5 Electricity transmission or distribution   Section 2.48	There is an existing power pole servicing the site adjacent to the existing driveway within the Guernsey Street public domain. However, the proposed development is not located within 5 metres of an exposed overhead electricity power line. The proposed development does not seek significant excavation greater than 2 metres below the ground level nor is located within 10 metres of an electricity tower. A referral to the electricity supply authority is not required.
	Chapter 2 – Infrastructure   Division 15 Railways	The site is located approximately 85 metres to a railway corridor. However, the site is not located in or adjacent to a rail corridor. A referral to Transport for NSW is not required.
	Chapter 2 – Infrastructure   Division 17 Roads and traffic	Guernsey Street is not a classified road as defined under the Roads Act 1993. The site is not located in or adjacent to a road corridor, road reservation or considered as traffic-generating development. A referral to Transport for NSW is not required.

Local Environmental Plans

Cumberland Local Environmental Plan 2021 (CLEP 2021)

The provisions of the Cumberland Local Environmental Plan 2021 is applicable to the development proposal.

 

 

(a)    Permissibility

The proposed development is defined as a sex services premises which is permissible with consent in accordance with the Land Use Table of the CLEP 2021. The proposed development is defined as follows:

Sex services premises    means a brothel but does not include home                                                occupation (sex services).

The relevant matters to be considered under CLEP 2021 and the applicable clauses for the proposed development are summarised below. A comprehensive CLEP 2021 assessment is contained in Attachment 3.

Figure 5 – Cumberland LEP 2021 Compliance table

(b)    Clause 4.6 – Variation to the location of sex services premises

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 location of sex services premises pursuant to Clause 6.8 of the CLEP 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.

Clause 6.8 of the CLEP 2021 – Location of Sex Services Premises

The proposal seeks to contravene the Location of Sex Services Premises Development Standard under Clause 6.8 of the CLEP 2021 that requires that a sex services premises shall be located:

 

 

a)  more than 200 metres from land in a residential zone, and

b)  more than 200 metres from a place of public worship, hospital, school, centre-based child care facility, community facility or recreation area, and

ii)      

c)  more than 50 metres from a public utility undertaking, such as a railway station entrance, bus stop, taxi rank, ferry terminal or the like.

To the north, the site is located within 200 metres of land zoned R2 Low Density Residential and R3 Medium Density Residential under the Cumberland Local Environmental Plan 2021 as per Figure 6 below.

Figure 6 – Proximity of the site to residential zoned land to the north.

The applicant has submitted a Clause 4.6 variation request to vary Clause 6.8 – location of sex services premises prepared by Boston Blyth Fleming Pty Ltd in support of the proposal.

An assessment of the relevant provisions of Clause 4.6 is as follows:

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

Applicant’s Justification:

·    The proposed development does not comply with clause 6.8 of CLEP which specifies a minimum distance that a sex services premises can be from a residential zone however strict compliance is considered to be unreasonable or unnecessary in the circumstances of this case and there are considered to be sufficient environmental planning grounds to justify contravening the development standard.

·    The common approach for an applicant to demonstrate that compliance with a development standard is unreasonable or unnecessary are set out in Wehbe v Pittwater Council [2007] NSWLEC 827.

·    The first option, which has been adopted in this case, is to establish that compliance with the development standard is unreasonable and unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard.

·    The existing use of the site is for a sex services premises which was approved by the consent authority and considered appropriate for this specific use. The use will continue with this current application.

·    Notwithstanding, the site is within an established industrial area and typically it has it peak periods outside traditional business hours. The residential zone is isolated from the subject site due to the trainline bisecting the industrial and residential zone. The train stations at Yennora and Guildford are in excess of 200m from the subject site. There is little risk of causing disturbance in this regard.

·    As mentioned above, the premises will not interfere with the amenity of the neighbourhood, in particular to the residential zone which is separated by the trainline. The use is already approved and operating in this location and was deemed appropriate with regard to amenity outcomes by the consent authority.

·    The use is existing and has not resulted in any unreasonable disturbances in the neighbourhood. The proposal does not increase the number of sex service premises in the area.

·    The premises is approved for 24/7 hours of operation and is not changing with this application.

·    Having regard to the clause 4.6 variation provisions we have formed the considered opinion:

a)   that the contextually responsive development is consistent with the intent of the controls as they reasonably apply, and

b)   that the contextually responsive development is consistent with the objectives of the location of sex services clause, and

c)   that there are sufficient environmental planning grounds to justify contravening the development standard, and

d)   that having regard to (a), (b) and (c) above that compliance with the location of sex services development standard is unreasonable or unnecessary in the circumstances of the case, and

e)   that given the existing use is as a sex services premises and that use is being maintained the location of the sex services premises would not be antisympathetic to the public interest, and

f)    that contravention of the development standard does not raise any matter of significance for State or regional environmental planning; and

g)   concurrence of the Secretary can be assumed in this case.

Planner’s Analysis:

The applicant’s discussion is supported given that the existing use of the site is for a sex services premises and the use will continue with this current application. It is considered that applicant’s written request has adequately justified why compliance with the development standard is unreasonable or unnecessary.

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:

·    Sufficient environmental planning grounds exist to justify the variation to clause 6.8. Specifically, the location of the sex services premises and its hours of operation are not proposed to be changed with this application. It has been approved by the consent authority and subsequently has been assessed as being a reasonable location for this type of use.

·    The proposed development achieves the objects in Section 1.3 of the EPA Act, specifically:

- The proposal promotes the orderly and economic use and development of land (1.3(c)).

- The development represents good design (1.3(g)).

- The building as designed facilitates its proper construction and will ensure the protection of the health and safety of its future occupants (1.3(h)).

·    It is noted that in Initial Action, the Court clarified what items a Clause 4.6 does and does not need to satisfy.

·    There are sufficient environmental planning grounds to justify contravening the development standard.

Planner’s Analysis:

It is acknowledged that a current development consent has been issued for the site as a sex services premises.

It is considered that the locational requirements for sex services premises can be supported in the circumstance of the case, as there are sufficient environmental planning grounds for contravening the development standard.

Conclusion:

Council is satisfied that the applicant’s written request has adequately addressed the matters required to be demonstrated by Clause 4.6 subclause (3). Council is further satisfied that the proposed development is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out. It is the view of Council that the justification provided is satisfactory and having considered the application on its merit, the exception to the locational requirements for sex services premises development standard is considered acceptable in this instance.

The provisions of any proposed instrument that is or has been the subject (s4.15 (1)(a)(ii) of the EP&AA 1979)

No proposed planning instruments applicable.

The provisions of any Development Control Plans (s4.15 (1)(a)(iii) of the EP&AA 1979)

The Cumberland Development Control Plan 2021 (CDCP 2021) provides guidance for the design and operation of development to achieve the aims and objectives of the CLEP 2021. A comprehensive assessment and compliance table is contained in Attachment 4.

A summary of the CDCP 2021 non-compliances is provided in the following table.

As indicated in the summary table above, the proposed development departs from a control in Part E5 of the CDCP 2021. The signage is considered too large and prominent and can be resolved by imposing condition 12(f) which ensures the size of the signage complies with Part E5 of the CDCP 2021. It is considered that the proposal performs satisfactorily from an environmental planning viewpoint.

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 (s4.15(1)(a)(iiia) of the EP&AA 1979)

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

The provisions of the Regulations (s4.15(1)(a)(iv) of the EP&AA 1979)

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 (s4.15(1)(b) of the EP&AA 1979)

It is considered that the proposed development will not have significant adverse environmental, social and economic impacts within Guildford. It is identified that the proposed development if approved would not create adverse issues in relation to parking, stormwater drainage and management and contamination of lands. Accordingly, the proposed development is supported.

The suitability of the site for the development (s4.15(1)(c) of the EP&AA 1979)

It is considered that the development is suitable in the context of the site and surrounding neighbourhood.

Submissions made in accordance with the Act or Regulation (s4.15(1)(d) of the EP&AA 1979)

Advertised (Website)

Mail

Sign

Not Required

In accordance with Council’s Notification requirements contained within the Cumberland Development Control Plan 2021, the proposal does not require notification, however, because of the sensitive nature of the use, the proposal was publicly notified to the adjoining neighbours for a period of 14 days between the 8 March 2024 and 22 March 2024. In response, no submissions were received.

The public interest (s4.15(1)(e) of the EP&AA 1979)

In view of the foregoing analysis, it is considered that the development as proposed would be consistent with the public interest.

CUMBERLAND LOCAL INFRASTRUCTURE CONTRIBUTIONS PLAN 2020

The development would require the payment of contributions in accordance with Cumberland Local Infrastructure Contributions Plan 2020. In accordance with the Contribution Plan a contribution of $13,179.00 is payable, pursuant to section 7.12 of the EP&A Act 1979, as calculated on the cost of works should the Panel support the application.

 

 

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 payment of the Housing and Productivity Contribution (HPC). A sex services premises is defined as commercial development under the Environmental Planning and Assessment (Housing and Productivity Contributions) Order 2024.

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 Environmental Plan 2021, State Environmental Planning Policy (Industry and Employment) 2021, Cumberland Development Control Plan 2021 and is considered as being satisfactory for approval subject to conditions.

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

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 location of sex services premises development standard, pursuant to Clause 6.8 of the Cumberland Local Environmental Plan 2021 be supported.

2. That Development Application No. DA2023/0679 for the demolition of existing structures and construction of a two-storey building for the purpose of a sex services premises to operate 24 hours/7 days a week and associated business identification signage on land at 10 Guernsey Street, GUILDFORD NSW 2161 be approved subject to conditions listed in Council’s assessment report.

1.     Draft Notice of Determination  

2.     Architectural, Landscape and Stormwater Plans  

3.     State Environmental Planning Policy (Industry and Employment) 2021 Assessment  

4.     Cumberland Local Environmental Plan 2021 Assessment  

5.     Cumberland Development Control Plan 2021 Assessment  

6.     Plan of Management  

7.     Clause 4.6 written request to vary Clause 6.8 Location of Sex Services Premises   

 

DOCUMENTS
ASSOCIATED WITH
REPORT ELPP035/24

Attachment 1

Draft Notice of Determination

 13 November 2024

DOCUMENTS
ASSOCIATED WITH
REPORT ELPP035/24

Attachment 2

Architectural, Landscape and Stormwater Plans

 13 November 2024

DOCUMENTS
ASSOCIATED WITH
REPORT ELPP035/24

Attachment 3

State Environmental Planning Policy (Industry and Employment) 2021 Assessment

 13 November 2024

DOCUMENTS
ASSOCIATED WITH
REPORT ELPP035/24

Attachment 4

Cumberland Local Environmental Plan 2021 Assessment

 13 November 2024

DOCUMENTS
ASSOCIATED WITH
REPORT ELPP035/24

Attachment 5

Cumberland Development Control Plan 2021 Assessment

 13 November 2024

DOCUMENTS
ASSOCIATED WITH
REPORT ELPP035/24

Attachment 6

Plan of Management

 13 November 2024

DOCUMENTS
ASSOCIATED WITH
REPORT ELPP035/24

Attachment 7

Clause 4.6 written request to vary Clause 6.8 Location of Sex Services Premises

 13 November 2024

 13 November 2024

Item No: ELPP036/24

Development Application - 1 Tamplin Road, Guildford

Directorate:                                Environment and Planning  

Responsible Officer:                   Executive Manager City Planning and Development   

 

 

1. Development Application No. DA2024/0406 was accepted on 23 August 2024 for the Torrens Title subdivision of one (1) lot into two (2) lots on land known as McCredie Park.

2. The application was publicly notified to occupants and owners of the adjoining properties for a period of twenty-eight (28) days between 26 September 2024 and 24 October 2024. In response, no submissions were received.

3. The application is referred to the Panel as there is a conflict of interest with the property owner, being Cumberland City Council.

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

Subject Site and Surrounding Area

The subject site forms Lot 21 in DP 1018330 and is known as 1 Tamplin Road, Guildford. It has an area of 63,380sqm and is bounded by Tamplin Road to the east of the site, Guildford Road to the north of the site, Dennistoun Avenue to the south and Fowler Road to the west of the site.

The site currently contains a number of community facilities including parkland with child play equipment, a football oval with associated at-grade parking, an open space area (former Guildford Swimming Centre) and carpark located on the northern part of the site.

Opposite the site to the east (11 Byron Road, Guildford) contains the state heritage item Linnwood Estate, known as Item No. I01661 under the Cumberland Local Environmental Plan 2021.

The subject site is zoned RE1 – Public Recreation Zone under the Cumberland Local Environmental Plan 2021.and the site is generally surrounded by R2 Low Density Residential zoned land with RE2 – Private Recreation zoned property adjoining to the east (containing Guildford Leagues), R3 – Medium Density Residential zoned land opposite Tamplin Road to the east and E4 – General Industrial zoned land to the south of the site.

Figure 1 – Locality Plan of subject site

Figure 2 – Aerial view of subject site

Figure 3 – View of McCredie Park ovals

Figure 4 – View of Guildford Leagues adjoining the site

Description of The Development

Council has received a development application for Torrens Title subdivision of one (1) lot into two (2) lots on land known as McCredie Park. The subdivision is detailed as follows:

·   Lot 1: 4.834 ha (48,340m2) containing McCredie Park ovals, fields and facilities; and

·   Lot 2: 1.503 ha (15,030m2) to contain the new Guildford Pool and on-site carpark.

It should be noted a Development Application for a new Guildford Swimming Centre is currently under assessment under DA2024/0330 to be determined by the Sydney Central City Planning Panel (SCCPP). Furthermore, the demolition of the existing Guildford Pool and associated centre and structures was approved by a Review of Environmental Factors pathways on 7 March 2024. Having regard to this, the subject subdivision application will provide better opportunity to enhance recreational settings and activities within the park.

History

·   The demolition of the existing Guildford Pool and associated centre and structures was approved by a Review of Environmental Factors pathways on 7 March 2024.

·   Pre-lodgement Application No. PL2024/0017 was held on 18 April 2024 to construct a new swim centre at the existing Guildford Pool location.

·   Development Application No. DA2024/0330 is currently under assessment for the construction of an indoor and outdoor recreation facility (known as Guildford Pool) including change rooms, multi-purpose space, an indoor 25m program and lane pool, an outdoor 25m lane pool, external storage building, provision of signage, associated civil works and associated landscaping, including the removal of trees (Guildford Pool Modernisation Project).

 

Applicants Supporting Statement

The applicant has provided a Statement of Environmental Effects prepared by Berker Ryan Stewart dated August 2024 and was received by Council on 23 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

Development Engineering

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

Public Spaces Planning and Design

The development application was referred to Council’s Senior Landscape Architect for comment who has advised that the proposal is satisfactory and therefore can be supported.

The proposed subdivision will not alter the management objectives for the greater McCredie Park area, as defined under the McCredie Plan of Management 2012.

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

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:

 

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 RE1 Public Recreation Zone as the proposal is for subdivision only and no physical works are proposed as part of the application.

(a)    Permissibility:

The proposed works being ‘subdivision’ is permissible with consent pursuant to Section 2.6 of the Cumberland LEP 2021.

2.6 Subdivision—consent requirements

(1)    Land to which this Plan applies may be subdivided, but only with         development consent.

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 5 – Cumberland LEP 2021 Compliance Table

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

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 (CDCP) 2021 is relevant to the development proposal. The development has been assessed in accordance with Part A2 – Subdivision of the CDCP 2021.

The proposed development complies with the provisions of the Cumberland DCP 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))

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 28 days between 26 September 2024 and 24 October 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)

The proposed development is for ‘subdivision’ and does not fall under a ‘residential subdivision’ as defined under ‘Part 2 Development for which contribution is required and determination of contribution’ of the Housing Environmental Planning and Assessment (Housing and Productivity Contribution) Order 2024, therefore will not attract a HPC payment.

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 LEP and Cumberland DCP and is considered to be satisfactory for approval subject to conditions.

The proposed development is appropriately located within the RE1 Public Recreation Zone under the relevant provisions of the Cumberland LEP. The proposed sub-division 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. DA2024/0406 for Torrens Title subdivision of one (1) lot into two (2) lots on land known as McCredie Park at 1 Tamplin Road, GUILDFORD NSW 2161 be approved subject to conditions listed in Council’s assessment report.

1.     Draft Notice of Determination  

2.     Subdivision Plans  

3.     Cumberland LEP 2021 Assessment  

4.     Cumberland DCP 2021 Assessment  

5.     McCredie Park Plan of Management   

 

DOCUMENTS
ASSOCIATED WITH
REPORT ELPP036/24

Attachment 1

Draft Notice of Determination

 13 November 2024

DOCUMENTS
ASSOCIATED WITH
REPORT ELPP036/24

Attachment 2

Subdivision Plans

 13 November 2024

DOCUMENTS
ASSOCIATED WITH
REPORT ELPP036/24

Attachment 3

Cumberland LEP 2021 Assessment

 13 November 2024

DOCUMENTS
ASSOCIATED WITH
REPORT ELPP036/24

Attachment 4

Cumberland DCP 2021 Assessment

 13 November 2024

DOCUMENTS
ASSOCIATED WITH
REPORT ELPP036/24

Attachment 5

McCredie Park Plan of Management

 13 November 2024

 13 November 2024

Item No: ELPP037/24

Development Application - 411 Great Western Highway, Greystanes

Directorate:                                Environment and Planning  

Responsible Officer:                   Executive Manager City Planning and Development   

 

 

1. Development Application No. 2024/0053 was accepted on 11 April 2024 for partial demolition and alterations and additions to an existing self-storage facility including partial demolition and alterations and additions to an existing self-storage facility including an extension to Building 1 and construction of a five (5) storey building containing storage units and associated signage - Integrated Development pursuant to Clause 91 of the Water Management Act 2000.

2. The application was publicly notified to occupants and owners of the adjoining properties for a period of 28 days between 25 April 2024 and 23 May 2024. In response, no submissions were received.

3. The subject site is not listed as a heritage item and is not located within a heritage conservation area.

4. The variations are as follows:

 

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

6. The application is recommended for refusal as discussed in the Council’s assessment report.

Subject Site and Surrounding Area

The subject site is located at 411 Great Western Highway Greystanes and is legally described as Lot 1 in DP 739797.

A self-storage complex is currently in operation at the site (known as Kennards Self Storage) in accordance with development consent 85/68 issued by Holroyd Council. One (1) two storey and four (4) single storey buildings housing self-storage units and a single storey showroom building is located within the property.

A substation is located within the front setback area of the property and adjacent to the driveway crossovers fronting the site is a stone marker. The marker is a local heritage item identified as I125 in the Cumberland Local Environmental Plan 2021.

Coopers Creek and a dense collection of trees and vegetation is located along the western boundary of the property. The site is bordered by the Great Western Highway to the north (from which access to the property is provided) and the Western Motorway to the south.

Figure 1 – Locality Plan of subject site

Figure 2 – Aerial view of subject site

Figure 3 – Street views of subject site

Description of The Development

Council has received a development application for alterations and additions to an existing self-storage facility known as “Kennards Self Storage”. As part of the development, demolition works is required and an increase in the operating hours of the facility is sought as detailed below.

Demolition

The two centrally located buildings identified as “Existing Building 2” and “Existing Building 3” on the submitted plans are to be removed from the site. The existing single storey “Showroom” building at the front of the property and the existing internal driveways and associated fencing is to be removed. Existing buildings 4 and 5 located in the western part of the site is to remain unaltered.

All sixteen (16) onsite parking spaces adjacent to the showroom and the rear boundary are proposed to be removed. Five (5) angular parking spaces situated at the northern end of the site are also to be removed.

 

Proposed Alterations and Additions

Proposed Building 1

An extension is proposed to the existing building identified as “Building 1” on the site. The extension is two storeys in height, is located at the front of the property and consists of a showroom, meeting room, company store, parcel pickup room, a bathroom, several self-storage units, a hoist and a return stairwell.

The first floor contains numerous self storage units.

Onsite parking provision consists of four (4) spaces inclusive of one (1) accessible space situated to the western side of the proposed extension. These spaces are to accommodate staff and customers to the showroom and are not intended to accommodate customers with self-storage units.

Proposed Building 2

A five-storey building is proposed centrally within the site containing numerous self-storage units positioned on all levels and is identified as “Building 2”. Access to each level is provided via two (2) elevators and three (3) stairwells. The highest point of the building measures 19.65m.

Driveway areas adjacent to each self-storage building will be dedicated for the purpose of “ranch style parking”. Detail relating to the number, location and design of these informal parking spaces has not been provided.

Proposed increase in intensity of the development

The applicant has provided an “estimation of storage unit yield” being approximately 1,500. The existing number of units number “approximately 725”.

The proposed alterations and additions detailed above increase the Gross Floor Area (GFA) of the development resulting in a Floor Space Ratio (FSR) of 1.39:1. A breakdown of the existing and proposed GFA (as calculated by Council) is provided in the following table:

 

 

Proposed development	Gross Floor Area (GFA)
Extension to Building 1	888sqm
Building 1	4,090sqm
Building 2 (new building)	12,722sqm
Building 4	833sqm
Building 5	1,535sqm
FSR	1.39:1
Total GFA	20,068sqm

Other Works

Internal driveways

New internal driveways providing vehicle access and egress is provided within the front setback area of the property which are proposed to connect to two existing crossovers servicing the site.

Fencing

2.1m high palisade fencing to match existing boundary fencing is proposed within the front setback area as depicted on the landscape plan.

Signage

Illuminated business identification signage is proposed on the north and east elevations Building 1 as shown on the elevation plans. The signage identifies the business name and corporate colours being blue and orange with white lettering. This signage is reproduced on the north, south and west elevations of the proposed Building 2.

An illuminated business logo in the form of a padlock is provided on the east, south and west elevations of the proposed Building 2.

Landscaping

New landscape area is provided within the front setback and between the new internal driveways. Four (4) new street trees are to be established at the front of the site.

Operational Details

In addition to the abovementioned building works, approval is sought for the premises to operate 24 hours, 7 days a week. It is noted that the currently approved hours for the use are:

7am to 6pm Mondays – Saturdays; and

10am to 4pm – Sundays

History

On 14 March 1985, a development application (Development Consent No. 85/68) was approved for the “erection of a self-storage unit complex” at the subject site.

 

Applicants Supporting Statement

The applicant has provided a Statement of Environmental Effects prepared by Planning Ingenuity dated 9 February 2024 which was accepted by Council on 11 April 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 Senior Development Engineer for comment who has advised that the development proposal is unsatisfactory with respect to stormwater management (on-site detention, stormwater quality improvement measures) and traffic and parking (onsite parking provision and onsite manoeuvring). As such, the development cannot be supported on engineering grounds. This matter forms part of the reasons for refusal.

Environmental Health

The development application was referred to Council’s Senior Environmental Health Officer for comment who has advised that the development cannot be supported as the Construction Environmental Management Plan (CEMP) as required by the Detailed Site Investigation Report for the development is deemed to be unsatisfactory. This matter forms part of the reasons for refusal.

Building Surveying

The development application was referred to Council’s Senior Building Surveyor for comment who has advised that the development proposal is satisfactory subject to a condition to ensure compliance with the National Construction Code.

Tree Management

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

External Referrals

External referrals to Water NSW and Sydney Water Corporation were undertaken with respect to the development as follows.

Water NSW

The development is defined as Integrated Development in accordance with clause 91 of the Water Management Act 2000. Water NSW provided comment specifying that the proposed works are exempt from the need to obtain a controlled activity approval and no further assessment is required from the agency.

Sydney Water

In accordance with Section 78 of the Sydney Water Act 1994, the development was referred to Sydney Water for comment. Sydney Water has raised no objection to the proposal subject to conditions.

PLANNING COMMENTS

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

State Environmental Planning Policies

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

 

Local Environmental Plans

Cumberland Local Environmental Plan 2021

The provision of the Cumberland Local Environmental Plan 2021 is applicable to the development proposal. It is noted that the development does not achieve compliance with the key statutory requirements of the Cumberland Local Environmental Plan 2021 and the objectives of the E3 Productivity Support, hence the proposal is recommended for refusal as discussed later in the report.

(a)    Permissibility:

The proposed development is defined as a ‘storage premises’ and is permissible in the E3 Productivity Support zone with consent.

storage premises means a building or place used for the storage of goods, materials, plant or machinery for commercial purposes and where the storage is not ancillary to any industry, business premises or retail premises on the same parcel of land, and includes self-storage units, but does not include a heavy industrial storage establishment, local distribution premises or a warehouse or distribution centre.

The relevant matters to be considered under Cumberland Local Environmental Plan 2021 (CLEP) and the applicable clauses for the proposed development are summarised below. A comprehensive CLEP assessment is contained in Attachment 6.

Figure 4 – CLEP Compliance Table

(b)    Clause 4.6 – Exception to development standard

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 standards for the maximum building height and Floor Space Ratio (FSR) under Clause 4.3 and 4.4 of the Cumberland Local Environmental Plan 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.

 

 

Clause 4.3 Height of Building

The proposal seeks to contravene the 15m height of building development standard. The submitted 4.6 request identifies a maximum building height of 19.15m representing an exceedance of 4.15m or 27.6%.

The abovementioned figures are incorrect. Based on Council’s review of the submitted documentation, the highest point of the development (RL53.50) relative to natural ground level (RL33.85) should be measured from the northwestern side of Proposed Building 2. This point is identified by the red mark in the image below.

Contrary to the figures specified in the applicant’s 4.6 request, Council has calculated the proposed height of building to be 19.65m which equates to a variation of 4.65m or 31%.

An assessment of the relevant provisions of Clause 4.6 is as follows:

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

Applicant’s Justification:

The applicant specifies that compliance with the development standard is unnecessary or unreasonable given the development achieves the objectives of the development standard and there are no additional material adverse impacts arising from the non-compliance (refer to Attachment 4 for a copy of the applicant’s 4.6 request).

Planner’s Comment:

Council considers the request to vary the height of buildings development standard to be unreasonable for the following reasons:

-    It is noted that the non-compliant building height exacerbates the non-compliance associated with the Floor Space Ratio (FSR) of the development resulting in an excess of Gross Floor Area (amounting to 5,638sqm or 39%). The non-compliance sought with respect to FSR is not supported as detailed in the discussion of Clause 4.4 Floor Space Ratio in this report.

-    Approval of a higher than permitted height of building will detract from the scale of built form that is envisaged in the area under the Cumberland Local Environmental Plan 2021.

-    The requested variation is inconsistent with the intent of Clause 4.6 of the CLEP in that the degree of flexibility sought to vary the development standard is considered to be inappropriate in the circumstances. In this regard, it is noted that the extent of the variation essentially includes the entirety of the upper level of “Proposed Building 2” as opposed to what is typically considered feasible for consideration being minor protruding elements or unhabitable portions of a building (which typically includes lift overruns and/or architectural roof elements).

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:

There will be no significant impacts on the amenity of future building occupants and on the character of the locality with respect to privacy as the immediately adjoining land to the east and west is comprised of commercial/industrial uses. Separation of the development site to the west is provided by a dense riparian corridor. The use being self-storage is a low intensity land use and there is no residential accommodation in the vicinity of the site.

The non-compliant sections of the building do not result in view loss.

The building height variation will not be visually dominant from the street frontages or adjoining properties.

Overshadowing impacts are negligible based on the submitted sun shadow diagrams.

Planner’s Analysis:

Council is in agreement with the applicant that the amenity impacts of the development with respect to overshadowing, privacy and view loss are relatively insignificant.

Conclusion:

Council is not satisfied that the applicant’s written request has adequately addressed the matters required to be demonstrated by Clause 4.6 subclause (3)(a) as it has not been demonstrated that compliance with the development standard is unreasonable or unnecessary in the circumstances. It is the view of Council that the justification provided is unsatisfactory and having considered the application on its merit, the exception to the height of buildings development standard is not considered acceptable in this instance.

Clause 4.4 Floor Space Ratio

The submitted 4.6 request seeks to contravene the maximum 1:1 floor space ratio development standard by proposing an FSR of 1.36:1 resulting in a variation of 36.2% or 5,226sqm.

The applicant’s calculation appears to be inaccurate noting the exclusion of stairwells and lift cores on the ground level. Council is of the opinion that these areas should be included once in the calculation of GFA. Inclusion of these areas amounts to an FSR of 1.39:1 which is a variation of 39% or 5,638sqm.

An assessment of the relevant provisions of Clause 4.6 is as follows:

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

Applicant’s Justification:

The proposed development will be in the public interest because it is consistent with the objectives of the Floor Space Ratio development standard with respect to:

-    Enable appropriate development density

The increase in density would be masked by the riparian corridor to the west.

-    Development intensity reflects its locality

The site is located between two major road corridors, is transitioning from older lower scale commercial/industrial uses to more contemporary commercial/industrial built forms. The Wenty Leagues Club on the opposing side of the Great Western Highway is a visually dominant six storey building.

Planner’s Analysis:

Council is not in agreement that the objectives of the Floor Space Ratio development standard is satisfied despite the variation proposed. In this regard, objective 4.4(1)(a) specifies “to establish a maximum floor space ratio to enable appropriate development density”. It has not been demonstrated to the satisfaction of Council that the proposed development density is appropriate noting the following:

-    The applicant’s response to Council’s request to clarify the total number of existing and proposed storage units is vague and inadequate. The applicant provided an “estimation of storage unit yield” being approximately 1,500 and has stated the existing number of units to be “approximately 725”.

-    Notwithstanding the inadequacy of the response noted above, it is apparent that there will be a significant increase in the intensity of the development (additional 775 units which represents a 107% increase in total unit yield). It has not been demonstrated that the potential increase in demand can be accommodated by the proposed parking onsite parking and vehicle circulation arrangement which is discussed in detail below.

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:

The additional GFA is largely associated with Proposed Building 2 which is situated centrally within the site and consumes an equivalent building envelope to the buildings it replaces (being existing Buildings 2 and 3).

The additional GFA provides an opportunity to increase the capacity of self-storage in an infill nature and presents no amenity impacts on terms of privacy, view loss or overshadowing.

The Traffic and Parking Assessment demonstrates that suitable amenity internal to the site with regard to access, egress and parking can be achieved. In this regard:

-    The additional 18 vehicles per hour cited by the report as a result of the development can be accommodated by the surrounding road network.

-    Onsite parking provision consists of informal ranch style parking where customers park adjacent to units or close to lifts.

Planner’s Analysis:

It has not been demonstrated to the satisfaction of Council’s Senior Development Engineer that the increase in intensity of use (by virtue of the increase in GFA) can be accommodated by the proposed onsite parking arrangement and vehicle circulation within the site.

In this regard, the provision of “informal parking on the internal circulation road” in the form of ranch style parking as noted in the 4.6 request is unacceptable. Council considers it appropriate to provide details pertaining to the number, siting and dimensions of parking/loading and unloading spaces in a formal arrangement on the submitted plans. The provision of a formalised parking/loading/unloading arrangement of spaces is required to determine the feasibility of accommodating the projected demand and range of vehicle types anticipated to visit the site as stated in the Traffic and Parking Assessment (cars and trailers, small trucks and a range of larger commercial vehicles up to and including 12.5m long HRV truck and 19m long AV semi-trailers).

As such, a determination on the adequacy of the development to accommodate the anticipated onsite parking demand and the range of vehicle types expected to visit cannot be undertaken. As such, the justification to vary the FSR development standard on environmental planning grounds with respect to parking and traffic impacts is not supported by Council.

Conclusion:

Council is not satisfied that the applicant’s written request has adequately addressed the matters required to be demonstrated by Clause 4.6 subclause (3)(a) and (b). It is the view of Council that the justification provided is unsatisfactory and having considered the application on its merit, the exception to the FSR development standard is not 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 C – Development in Business Zones

Part G1 – Advertising and Signage

Part G2 – Heritage

Part G3 – Traffic, Parking, Transport and Access

Part G4 – Stormwater and Drainage

Part G5 – Sustainability, Biodiversity and Environmental Management

Part G7 – Tree Management and Landscaping

Part G8 – Waste Management

A summary of the CDCP 2021 non-compliances is provided in the following table. 

 

 

 

Figure 5 – Cumberland DCP 2021 Compliance Table

Clause	Control	Proposed	Complies
Part C   3.20 Safety and security	C23. Pedestrian walkways and car parking shall be direct, clearly defined, visible and provided with adequate lighting, particularly those used at night.	The onsite parking spaces are not clearly defined. The applicant contends that there will be informal “ranch style” spaces at close to access points around Building 2.   This matter forms part of the reasons of refusal.	No
3.24 Parking	C1. Refer to Part G3 of this DCP, or section 3J-1 of the ADG for car parking provision requirements.	Informal onsite parking spaces are proposed. Details including the number, location and design are not provided and as such, Council cannot determine that the increase in demand brought about by the proposal can be adequately accommodated. It is noted that Council’s Engineer has objected to the development on this basis.   This matter forms part of the reasons of refusal.	No
3.25 Vehicle access	C1. Vehicle access will comply with the provisions set out in Part G3 of this DCP.	Vehicle swept diagrams was requested detailing the largest vehicles anticipated to enter the site. This information was not submitted by the applicant and as such, Council cannot determine that the development has been designed to accommodate appropriate vehicle manoeuvring. Council’s Engineer has objected to the development on this basis.   This matter forms part of the reasons of refusal.	No
Part G3   3. Parking rate	Development is to provide on-site parking in accordance with the following minimum rates in Table 1. Where a parking rate has not been specified in the table, the Guide to Traffic Generating Developments shall be used to calculate the parking requirements for the proposed development. Alternatively, a parking study may be used to determine the parking, subject to prior approval by Council. Additional parking objectives and controls are provided in Section 4 of this DCP.	There is no specific rate for self-storage facilities.   The applicant has provided a merit assessment of parking specifying that there is sufficient parking on site to cater for the development noting the “quantum of parking required based on the Stantec report includes both the formal spaces at the office and the capacity around the internal circulation roadway”. Proposed onsite parking is as follows: -    Informal parking to cater for users of the self-storage units. Details regarding the location and design of these spaces was not provided. -    Four (4) customer parking spaces will be provided adjacent to the showroom. Council considers the proposed parking arrangement to be unsatisfactory for the following reasons: -    The number, location and design of the informal parking spaces is unknown based on the submitted information. -    Insufficient information has been submitted to enable a full and thorough assessment of traffic and parking. In this regard, the Stantec Traffic Study was not provided. -    Council’s Engineer does not support the proposal on the basis of the above issues. This matter forms part of the reasons for refusal.	No
4.4 Development in business zone	C10. Parking rates shall comply with the minimum parking rates in Section 3 of this Part of the DCP.	There is no applicable parking rate in Section 3. The applicant has provided a merit assessment which is not supported by Council’s Engineer for the reasons outlined above.   This matter forms part of the reasons of refusal.	No
	C20. Visitor parking shall be clearly identified and shall not be provided in the form of stacked/ tandem parking	The parking arrangement has not been clearly shown. Details relating to the number, location and size of spaces has not been provided.   This matter forms part of the reasons of refusal.	No
4.6 Loading requirements for commercial and industrial development	C1. Loading bays for trucks and commercial vehicles shall be provided in accordance with Table 2.	No formal loading facilities for trucks and commercial vehicles is shown on plan or articulated in the submitted documents. The Traffic and Parking Assessment for the development specifies that cars and trailers, small trucks and a range of larger commercial vehicles up to 12.5m long HRV and 19m long AV semi-trailers will visit the site.   This matter forms part of the reasons for refusal.	No
	C2. Loading/unloading areas shall be provided in accordance with applicable provisions of Australian Standard (AS 2890).	Refer to comment above. Insufficient information submitted to enable an assessment against this control.	No
	C4. Locate and design service areas to facilitate convenient and safe usage.	Refer to comment above. Insufficient information submitted to enable an assessment against this control.   This matter forms part of the reasons of refusal.	No
	C5. Loading docks shall be located so as to not: • interfere with visitor and employee parking spaces; • interfere with pedestrians or vehicle circulation and access; and • result in delivery vehicles queuing on any public road, footway, laneway or service road.	Refer to comment above. Insufficient information submitted to enable an assessment against this control.   This matter forms part of the reasons of refusal.	No
	C7. Loading areas shall be designed for the largest size vehicle accessing the site.	Refer to comment above. Insufficient information submitted to enable an assessment against this control.   This matter forms part of the reasons of refusal.	No
Part G4   2.2 Method of stormwater disposal from the site	C1. All stormwater collecting as a result of the carrying out of development under this DCP must be directed by a gravity fed or charged system to: (a) a public drainage system, or (b) an inter-allotment drainage system, or (c) an on-site disposal system.	Council’s Engineer is not supportive of the proposed stormwater concept. Specifically, it has not been demonstrated that the on-site detention has been designed in accordance with the Upper Parramatta River Catchment Trust’s OSD design guidelines.   This matter forms part of the reasons for refusal.	No
2.7 Water Sensitive Urban Design, water quality and water re-use	Water Sensitive Urban Design (WSUD) C1. All development applications for sites of 2,500m2, or more in area must be supported by a Water Sensitive Urban Design Strategy, prepared by a qualified civil engineer with suitable experience.	Compliance has not been demonstrated and Council’s Engineer is not supportive of the development on this basis.   This matter forms part of the reason for refusal.	No
Part G5   2.3 Land contamination	C1. Prior to the submission of a development application, an assessment is to be made by the applicant under Clause 7 of SEPP No. 55 as to whether the subject land is contaminated prepared in accordance with the relevant Department of Planning, Industry and Environment Guidelines and the Guideline to Asbestos Management in Cumberland Council 2018.	The submitted Detailed Site Investigation Report for the development requires a Construction Environmental Management Plan (CEMP) to be prepared. A CEMP has not been submitted to the satisfaction of Council’s Environmental Health Officer.   This matter forms part of the reasons for refusal.	No
2.6 Energy efficiency and renewables	C1. New development shall implement energy efficient design and promote renewable energy sources through the inclusion of solar panels, skylights, cross ventilation and other such measures.	No energy efficiency measures are noted in the application.   This matter forms part of the reasons of refusal.	No

As indicated in the summary table above, the proposed development departs from the Parts C, G3, G4 and G5 of the Cumberland Development Control Plan 2021 (CDCP). Having regard to these departures, it is considered that the proposal performs unsatisfactorily from an environmental planning viewpoint for the reasons discussed below:

Part C

With respect to the safety, parking and vehicle access controls of this part, the number, location and design of onsite parking has not been clearly defined. Compliance with these controls cannot be determined by Council on the basis of insufficient information.

Part G3

This part of the CDCP contains detailed requirements relating to vehicular parking and access. In addition to the contention that insufficient information has been submitted as noted above, the proposition of informal parking spaces in a “ranch style” arrangement is considered to be unsatisfactory by Council and therefore does not comply with the controls specified in the table above.

Part G4

Insufficient information was submitted with respect to the stormwater management provisions of the CDCP, particularly with respect to on-site detention. Furthermore, the Water Sensitive Urban Design (WSUD) and water quality controls have not been addressed to the satisfaction of Council’s Engineer.

Part G5

With respect to contamination, the submitted Construction Environmental Management Plan (CEMP) is considered unsatisfactory by Council’s Environmental Health Unit and the energy efficiency requirements have not been addressed.

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 pose significant adverse environmental, social or economic impacts in the locality with regard to traffic impacts due to the inadequate provision of parking and vehicle manoeuvring within the site as detailed in the referrals section of this report.

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. However, the development is not considered to be suitable in the context of the site and surrounding locality due to the inherent parking, traffic and stormwater management issues noted throughout this report.

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 to the adjoining and surrounding neighbours for a period of 28 days between 25 April 2024 and 23 May 2024. No submissions were received.

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

In view of the foregoing analysis, it is considered that the development as proposed would not be consistent with the public interest as it has not been demonstrated to the satisfaction of Council that the proposed parking and vehicle access arrangement can accommodate the proposed increase in intensity of the development and the movement of vehicles anticipated to visit the site.

CUMBERLAND LOCAL INFRASTRUCTURE CONTRIBUTIONS PLAN 2020

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

In accordance with the Contribution Plan a contribution is payable, pursuant to Section 7.12 of the EP&A Act, calculated on the cost of works. If the development is approved, a total contribution of $158,345.00 would be payable prior to the issue of a Construction Certificate.

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).

If the development is approved, a condition of consent would be imposed 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.

Having regard to the relevant matters of consideration under Section 4.15 of the Environmental Planning and Assessment Act 1979, Environmental Planning and Assessment Regulation 2021, Cumberland Local Environmental Plan 2021, Cumberland Development Control Plan 2021, Water Management Act 2000, State Environmental Planning Policy (Resilience and Hazards) 2021, State Environmental Planning Policy (Industry and Employment) 2021 and State Environmental Planning Policy (Transport and Infrastructure) 2021, it is considered that the proposed development is unacceptable for the reasons outlined in this report. It is recommended that the development application be refused.

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 development standards for height of buildings and Floor Space Ratio, pursuant to the Cumberland LEP 2021, is not supported.

2.  That Development Application No. 2024/0053 for partial demolition and alterations and additions to an existing self-storage facility including an extension to Building 1 and construction of a five (5) storey building containing storage units and associated signage - Integrated Development pursuant to Clause 91 of the Water Management Act 2000 on land at 411 Great Western Highway, GREYSTANES NSW 2145 be refused for the reasons listed in Council’s assessment report.

 

1.     Draft Notice of Determination  

2.     Architectural Plans and Survey  

3.     Stormwater Plans  

4.     Clause 4.6 Request  

5.     Traffic & Parking Assessment Report  

6.     Cumberland LEP Assessment  

7.     Cumberland DCP Assessment  

8.     State Environmental Planning Policy (Industry and Employment) 2021   

 

DOCUMENTS
ASSOCIATED WITH
REPORT ELPP037/24

Attachment 1

Draft Notice of Determination

 13 November 2024

DOCUMENTS
ASSOCIATED WITH
REPORT ELPP037/24

Attachment 2

Architectural Plans and Survey

 13 November 2024

DOCUMENTS
ASSOCIATED WITH
REPORT ELPP037/24

Attachment 3

Stormwater Plans

 13 November 2024

DOCUMENTS
ASSOCIATED WITH
REPORT ELPP037/24

Attachment 4

Clause 4.6 Request

 13 November 2024

DOCUMENTS
ASSOCIATED WITH
REPORT ELPP037/24

Attachment 5

Traffic & Parking Assessment Report

 13 November 2024

DOCUMENTS
ASSOCIATED WITH
REPORT ELPP037/24

Attachment 6

Cumberland LEP Assessment

 13 November 2024

DOCUMENTS
ASSOCIATED WITH
REPORT ELPP037/24

Attachment 7

Cumberland DCP Assessment

 13 November 2024

DOCUMENTS
ASSOCIATED WITH
REPORT ELPP037/24

Attachment 8

State Environmental Planning Policy (Industry and Employment) 2021

 13 November 2024