Agenda of Environment and Planning

Georges River Council – Environment and Planning Standing Committee Meeting - Monday, 9 October 2017 Page 2

4. Committee Reports

Item: ENV001-17 Planning Proposal PP2017/0001 - 84D Roberts Avenue, Mortdale

Author: Coordinator Strategic Planning and Strategic Planner

Directorate: Environment and Planning

Matter Type: Committee Reports

Recommendation

(a) That Council endorse the Planning Proposal to amend Hurstville Local Environmental Plan 2012 by way of a Schedule 1 amendment to permit the uses of retail premises, bulky goods premises and centre-based child care facility, in relation to 84D Roberts Avenue (legally known as Lot 21 DP 542051).

(b) That Council endorse the Planning Proposal to be forwarded to the delegate of the Greater Sydney Commission for a Gateway Determination under Section 56 of the Environmental Planning and Assessment Act 1979.

Executive Summary

1. The Independent Hearing and Assessment Panel (IHAP) at its meeting on 21 September 2017 considered a report on the Planning Proposal for 84D Roberts Avenue, Mortdale as identified in Figure 1 below.

Figure 1 – Aerial of 84D Roberts Avenue, Mortdale

2. The Georges River IHAP recommends the following to Council:

· That the Planning Proposal to amend Hurstville Local Environmental Plan 2012 by way of a Schedule 1 amendment to permit the uses of retail premises, bulky goods premises and centre-based child care facilities, in relation to 84D Roberts Avenue (Lot 21 DP 542051), be forwarded to the delegate of the Greater Sydney Commission for a Gateway Determination under Section 56 of the Environmental Planning and Assessment Act 1979.

3. Refer to Attachment 1 for a copy of the report to the IHAP and the associated annexures. The IHAP report is comprehensive in its assessment and should be read in conjunction with this report.

4. This report recommends that Council supports the IHAP recommendation and endorse the Planning Proposal.

1 INTRODUCTION

1. Urbis submitted a Planning Proposal request (PP2017/0001) on behalf of Romanous Construction on 12 April 2017 seeking the amendment of the Hurstville Local Environmental Plan 2012 (“HLEP 2012”) in relation to the street address at 84D Roberts Avenue, Mortdale.

2. The applicant has stated that the objective of the Planning Proposal is to enable the current use on the site for retail premises, and additional uses of centre-based child care facilities and bulky goods premises to be permissible with consent under the HLEP 2012.

3. This Planning Proposal seeks to permit the uses of retail premises, bulky goods premises and centre-based child care facilities on the site by way of a Schedule 1 Additional permitted uses amendment to the HLEP 2012.

4. The Planning Proposal intends to allow for the continuation of existing uses on the site pursuant the 2009 development consent, so that the existing employment within the shopping centre is protected and the centre remains economically viable. Refer to Section 4.1 for the history of the development approval and permissible uses on the site.

5. The proposed Schedule 1 amendment will prescribe specific land uses to enable retail and bulky goods premises. This will replace the current provision of existing use rights on the site and restrict the permitted land use to the Standard Instrument land use terms of retail premises and bulky goods premises.

6. Additionally, a centre-based child care facility is intended to be located within the existing structure on the site to provide a community service that is increasing in demand.

2 SITE DESCRIPTION

2.1 Overview of the Site

7. The site is known as 84D Roberts Avenue, Mortdale and is legally described as Lot 21 DP 542051. The site is in an irregular battle-axe configuration with the access way on Roberts Avenue (refer Figure 2 below).

Figure 2 – Site Cadastre

(Source: Urbis Report)

8. The site is irregular in shape with an area of approximately 1.121 hectares and has the following boundaries:

· Roberts Avenue frontage of approx. 15.25m

· Shared side boundary with No. 84 of approx. 45.71m

· Shared boundary with rear of No. 84 of approx. 16.47m

· Eastern side boundary of approx. 92.8m

· Rear boundary of approx. 131.06m

· Western side boundary of approx. 58.61m

· Shared boundary with rear of No. 86 of approx. 99.83m

· Shared side boundary with No. 86 of approx. 37.93m

9. The site contains one existing development at the eastern boundary, a shopping centre known as Mortdale Plaza, shown in Figure 3 below. The shopping centre currently contains the following tenancies as listed in Table 1 below.

Figure 3 – The site as viewed from Roberts Avenue (Source: Urbis Report)

Table 1 – Current Tenancies and Land Use Type

Shop Name	Shop Type	Standard Instrument Definition	HLEP 2012 Land Use
Woolworths	Supermarket	Shop (a type of retail premise)	Prohibited
Diana Sadig	Pharmacy	Shop (a type of retail premise)	Prohibited
The Brasserie Club	Café	Food and drink premise (a type of retail premise)	Prohibited
BSW Liquor	Liquor Shop	Shop (a type of retail premise)	Prohibited
Crunch	Fitness Club / Gymnasium	Recreation facility (indoor)	Permitted with consent

10. Within the western section of the site is an unbuilt upon area that surrounds a watercourse which cuts through this area, shown in Figure 4 below.

Figure 4 – Aerial view of site (Source: Nearmap)

11. The ground surface of the site generally slopes down from the eastern side towards the western side with an average difference of approx. 2m in height. There is a localised portion of change in topography at the watercourse in the western portion of the site as the existing watercourse is approx. 5m lower than the rest of the site.

12. Roberts Avenue is a two way road with one lane of traffic for each direction. It also features street parking on both sides. It is used by both local residents and workers at the Peakhurst Industrial Precinct.

2.2 Surrounding Land

13. The site is located at the interface of light industrial, residential and recreational land uses. Land immediately surrounding the site to the north, east, and west is characterised by light industrial uses, known as the Peakhurst Industrial Precinct. Further to the east, south, and west of the site are single dwelling houses.

14. The primary interfaces of the site are described below in Table 2. The surrounding context is shown below in Figures 5 to 8.

Table 2 – Surrounding Land Uses

Aspect	Land Uses
North	Light industrial warehouses are located to the north of the site.
East	Light industrial warehouses are located immediately to the east of the site. A series of single dwelling houses begin approximately 200m east of the site.
South	Immediately to the south-west of the site is St George Masonic Club (86 Roberts Avenue). The site is bound to the south by Roberts Avenue. Beyond Roberts Avenue is a series of single dwelling houses and Hurstville Golf Club.
West	Land immediately to the west of the site is landscaped. Beyond this are light industrial warehouses.

Figure 5 – St George Masonic Club as viewed from Roberts Avenue

(Source: Urbis Report)

Figure 6 – Light industrial land uses as viewed from Roberts Avenue

(Source: Urbis Report)

Figure 7 – Hurstville Golf Club as viewed from Roberts Avenue

(Source: Urbis Report)

Figure 8 – Low density residential dwellings as viewed from Roberts Avenue

(Source: Urbis Report)

3 Planning Strategies, Policies and Controls

3.1 Existing Planning Controls

15. The site is currently zoned IN2 Light Industrial under the HLEP 2012 (refer to Figure 9 below). The allotments immediately adjoining the site are zoned IN2 Light Industrial. Surrounding lots are zoned IN2 Light Industrial, R2 Low Density Residential, and RE1 Public Recreation. Refer to Table 3 below for the HLEP 2012 Land Use Table for Zone IN2 Light Industrial.

Figure 9 – Land Zoning Map (Source: Urbis Report)

Table 3 – Zone IN2 Land Use Controls (HLEP 2012)

Zone IN2 Light Industrial

1 Objectives of zone

· To provide a wide range of light industrial, warehouse and related land uses.

· To encourage employment opportunities and to support the viability of centres.

· To minimise any adverse effect of industry on other land uses.

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

· To support and protect industrial land for industrial uses.

· To enable industrial development which does not pollute or adversely affect adjoining land, air or water.

· To ensure industrial development creates areas that are pleasant to work in, safe and efficient in terms of transportation, land utilisation and service distribution.

2 Permitted without consent

Home occupations

3 Permitted with consent

Depots; Garden centres; Hardware and building supplies; Industrial training facilities; Kiosks; Landscaping material supplies; Light industries; Neighbourhood shops; Places of public worship; Plant nurseries; Roads; Take away food and drink premises; Timber yards; Vehicle sales or hire premises; Warehouse or distribution centres; Water recycling facilities; Any other development not specified in item 2 or 4

4 Prohibited

Agriculture; Air transport facilities; Airstrips; Amusement centres; Biosolids treatment facilities; Boat launching ramps; Boat sheds; Camping grounds; Caravan parks; Cemeteries; Centre-based child care facilities; Charter and tourism boating facilities; Commercial premises; Community facilities; Correctional centres; Crematoria; Eco-tourist facilities; Educational establishments; Entertainment facilities; Environmental facilities; Exhibition homes; Exhibition villages; Extractive industries; Farm buildings; Forestry; Function centres; Health services facilities; Heavy industrial storage establishments; Helipads; Highway service centres; Home occupations (sex services); Information and education facilities; Industries; Jetties; Marinas; Mooring pens; Moorings; Mortuaries; Open cut mining; Passenger transport facilities; Public administration buildings; Recreation areas; Recreation facilities (major); Recreation facilities (outdoor); Registered clubs; Research stations; Residential accommodation; Respite day care centres; Rural industries; Sewage treatment plants; Tourist and visitor accommodation; Water recreation structures; Water supply systems; Wholesale supplies

4 APPLICANT’S PLANNING PROPOSAL REQUEST

4.1 Background

16. In 2009 under Development Application 08/DA-411, the former Hurstville City Council approved the development of the site for a “three storey mixed use development comprising supermarket, bulky goods retail, gymnasium and office with basement parking”.

17. The Development Application sought to replace the existing structures on the eastern portion of the site, which generally had comprised of a depot and service yard for motor mechanics and a temporary office building.

18. At the time of the development approval, the site was located within Zone No 4 (Light Industrial Zone) under the Hurstville Local Environmental Plan 1994 (“HLEP 1994”).

19. The Land Use Table of Zone No 4 specified that any land use which was not listed as a prohibited use would be permitted with development consent. As such, the proposed uses of bulky goods retail and gymnasium were considered to be permissible developments as they were not listed as prohibited uses in the zone.

20. A number of land uses were listed as “Prohibited” in the Light Industrial Zone, for example, boarding houses, caravan parks, dwellings, residential flat buildings, etc.

21. Office premises and shops were also included within the list of prohibited land uses. However, HLEP 1994 specifies that office premises and shops may be permitted if Council deems the uses to be appropriate to the industrial zone:

Prohibited … office premises and shops (other than those ordinarily incidental or subsidiary to industry, or which are primarily intended to serve persons occupied or employed in uses otherwise permitted in this zone, or which by virtue of their nature, the services provided, or the products produced, distributed or sold are, in the opinion of the council, appropriately located in an industrial zone);

22. Council’s assessment of the suitability of shops and commercial premises in the Light Industrial Zone was subject to Clause 16(1) of the HLEP 1994. The clause (as below) identifies a number of considerations Council must be satisfied of prior to granting consent for developments containing commercial purposes or shops (other than bulky goods salesrooms or showrooms which were already permitted with consent in the zone).

16 Development in industrial zones

(1) The council may grant consent to the carrying out of development on and within Zone No 4 for the purpose of shops (other than bulky goods salesrooms or showrooms) or for commercial purposes only where it is satisfied that:

(a) where the proposed development may otherwise have been carried out within a business centre in the locality, suitable land for the development is not available in that business centre, and

(b) the proposed development is of a type appropriate to an industrial zone, or to the general character of existing structures or uses within the industrial zone.

23. Supermarkets were identified as a form of “shop” and were therefore not permitted in the Light Industrial Zone under the HLEP 1994. However, the application was assessed using the Clause 16(1) mechanism of the HLEP 1994 and the proposed supermarket development was considered to be appropriately located in the industrial zone as it will service the needs of the local workforce.

24. Furthermore, the proposed “office premise” land use was also deemed to be permissible as it is ancillary in function to the other permitted uses in the Light Industrial Zone, in line with the Land Use Table as noted above.

25. Subsequently, the proposed development comprising of a supermarket, bulky goods retail, gymnasium and office with basement parking was approved in 2009 using the Clause 16(1) mechanism of the HLEP 1994.

26. In the preparation of the HLEP 2012 by the former Hurstville City Council, a series of ‘discussion papers’ relating to specific land use zones across the former Hurstville local government area were prepared.

27. The Commercial and Industrial Land Discussion Paper proposed the direct conversion of the planning controls for Zone No 4 (Light Industrial Zone) to IN2 Light Industrial under the new Standard Instrument LEP.

28. The flexibility of Clause 16(1) of the HLEP 1994 in enabling retail uses in Light Industrial zones was acknowledged in the discussion paper. The adopted HLEP 2012 has translated the intent of this clause into the ‘neighbourhood shops’ land use, which is permitted with consent in the IN2 Light Industrial land use table.

29. As a supermarket is considered to be a large format retail use, the more appropriate land use term in the Standard Instrument LEP is ‘retail premise’, which is currently prohibited in the IN2 Light Industrial zone under the HLEP 2012.

30. In light of the 2009 development consent, the existing development benefits from existing use rights as per Division 10 Existing uses of Part 4 Development assessment of the Environmental Planning and Assessment Act 1979.

31. However, the approved supermarket and bulky goods retail uses are not identified as Standard Instrument land use terms. This means that they cannot be distinctively identified in the HLEP 2012 and need to be substituted by similar terms, which creates a level of ambiguity in the permissible land uses on the site based on existing use rights.

32. By translating the existing land uses of supermarket and bulky goods retail to ‘retail premises’ and ‘bulky goods premises’ respectively through the Planning Proposal request, permissible land uses will become defined and restricted under HLEP 2012. The permissible land uses on the subject site will no longer be open to interpretations as it would otherwise remain under the application of existing use rights.

4.2 Summary of Planning Proposal Request

33. Urbis submitted a Planning Proposal request (PP2017/0001) on behalf of Romanous Construction on 12 April 2017 seeking the amendment of the Hurstville Local Environmental Plan 2012 (“HLEP 2012”) in relation to the street address at 84D Roberts Avenue, Mortdale (refer to Figure 1 above).

34. The Planning Proposal seeks to:

· Amend Schedule 1 Additional Permitted Uses of the HLEP 2012 to insert a clause with specific reference to the subject site as follows:

Use of certain land at 84D Roberts Avenue, Mortdale

(1) This clause applies to land at 84D Roberts Avenue, Mortdale being Lot 21, DP 542051.

(2) The uses of retail premises, bulky goods premises, and centre-based child care facilities are permitted with development consent.

35. In summary, the proposal seeks to permit the uses of retail premises, bulky goods premises and child care centres on the site by way of a Schedule 1 amendment to the HLEP 2012.

36. The proposed amendment to the HLEP 2012 does not propose any changes to built form provisions and is concerning land use only.

5 ASSESSMENT OF THE PLANNING PROPOSAL

5.1 Strategic Planning Context

37. Consideration of the Planning Proposal request in relation to the current regional or sub-regional plans and strategies A Plan for Growing Sydney (Metropolitan Strategy) and the draft South District Plan is provided below.

A Plan for Growing Sydney (Metropolitan Strategy)

38. A Plan for Growing Sydney was adopted in December 2014. The plan positively encourages well designed, higher density development within walking distance of public transport infrastructure with a key focus on urban renewal in appropriate areas. The applicant has provided their assessment of the Planning Proposal against the relevant Actions of the plan as below:

39. Goal 1: A competitive economy with world-class services and transport

Direction 1.11: Deliver infrastructure

Action 1.11.3: Undertake long-term planning for social infrastructure to support growing communities

The proposal will enable the provision of a centre-based child care facility in a prominent location near residents. With the expected increase in demand for child care facilities across Sydney, the proposal provides an approach to incorporate this important facility into an existing accessible building.

40. Goal 3: A great place to live with communities that are strong, healthy and well connected

Direction 3.1: Revitalise existing suburbs

Action 3.1.1: Support urban renewal by directing local infrastructure to centres where there is growth

The NSW Government has identified that the provision of social infrastructure such as child care centres will make a significant contribution to making vibrant local centres. Permitting the use of a centre-based child care facility on the site will contribute to further vibrancy to this local shopping centre.

Furthermore, the Planning Proposal will legitimise existing uses including the supermarket and bulky goods premises, which will assist in the revitalisation of the precinct as the local community is granted access to a greater variety of retail premises closer to home.

41. The Georges River local government area is located within the South Subregion. The applicant has provided their assessment of the Planning Proposal against the relevant Priorities of the South Subregion as below:

42. Priority: Accelerate housing supply, choice and affordability and build great places to live.

The proposal will enhance the liveability of the Mortdale area by protecting and enhancing access to essential services. The proposed provisions will give confidence to the landowner and operator of surrounding properties and businesses to continue to invest and improve the operations into the future as the precinct remains anchored by a major supermarket. This investment will contribute towards making Mortdale a great place to live by providing additional bulky goods premises, and the important local service of a centre-based child care facility.

43. Priority: Retain a commercial core in Hurstville, as required, for long-term employment growth; and provide capacity for additional mixed-use development in Hurstville including offices, retail, services and housing.

Whilst the site is not in the Hurstville core, it is in the wider locality and will contribute to employment in the area. The objectives associated with mixed-use commercial development are achieved with this proposal as it ensures that local services, employment and housing are near one another.

Draft South District Plan

44. The draft South District Plan proposes a 20-year vision by setting out aspirations and proposals for the South District. The applicant has provided their assessment of the Planning Proposal against the following relevant Priorities of the district plan as below:

45. Vision: A Productive City

Productivity Priority 1: Manage growth and change in strategic and district centres and, as relevant, local centres

The proposal protects the existing economic activity produced by the shopping centre. This will have positive effects on and will support both the local centre and the wider strategic centre of Hurstville.

46. Vision: A Productive City

3.8 Accessing a greater number of jobs and services within 30 minutes

The proposal seeks to allow for the continuation of the retail premises on the site and allow for the additional use of a centre-based child care facility and bulky goods premises. This in turn supports the ‘30 minute’ city concept, as it provides local employment and important local services close to residents.

47. Vision: A Liveable City

4.8 Respond to people’s need for services

The proposal seeks to allow for the use of a centre-based child care facility on the site. With the expected increase in demand for child care facilities within the South District, the proposal provides an approach to incorporate this important facility into an existing accessible building.

The proposal also seeks to incorporate a bulky goods premise into the existing shopping centre. This will enhance the attractiveness of Mortdale Plaza as a centre that provides a wide range of services that meets the needs of its surrounding residents and workers.

5.2 Council’s Local Strategic Plans

48. Consideration of the Planning Proposal request in relation to the current Hurstville Community Strategic Plan 2025 and the draft Georges River Employment Lands Study is provided below.

Hurstville Community Strategic Plan 2025

49. The former Hurstville City Council has endorsed the Hurstville Community Strategic Plan 2025 as the overarching strategy for Council’s objectives and operations. The applicant has provided their assessment of the Planning Proposal against the following relevant issues of the City Plan as below:

50. Building and maintaining community facilities and services.

The proposal will allow for the provision of a centre-based child care facility within the existing plaza. This is essential to meet the community’s growing needs for child care centres and in doing so will assist in satisfying the objective of this strategic plan in permitting the provision of more community facilities.

51. Supporting and attracting local businesses and encouraging local employment.

The proposal will protect existing local employment opportunities within the shopping plaza, whilst expanding the variety of these opportunities.

Draft Georges River Employment Lands Study

52. The draft Georges River Employment Lands Study (“ELS”) was recently publicly exhibited until 31 May 2017. The ELS provides Council with a strategic direction for employment lands across the Georges River local government area to ensure that sufficient land is zoned to accommodate future employment growth.

53. The site (known as Mortdale Plaza) is located within the Peakhurst Industrial Precinct. The provision of a large supermarket on the site is identified by the ELS as one of the strengths of the precinct through the amenity it provides to the area.

54. The applicant justifies that the proposal is consistent with the desired character of the precinct (refer below):

In the Peakhurst Industrial Precinct, the Mortdale Plaza is noted as providing a range of retail uses and a supermarket. The ELS supports the retention of Mortdale Plaza and its uses, and does not indicate that the site should cater to another use, including industrial.

The site, despite currently being zoned IN2 Light Industrial, plays a vital role in the precinct with its existing land uses. This document clearly indicates that the Mortdale Plaza and its current uses should be retained as they strengthen the precinct and support the surrounding industrial uses. This Planning Proposal will protect the existing uses, which in turn will protect the amenity of this industrial precinct.

5.3 State and Regional Statutory Framework

55. The consistency of the Planning Proposal with the relevant State Environmental Planning Policies (SEPPs) is addressed below:

State Environmental Planning Policy No. 55 – Remediation of Land

56. SEPP 55 aims to promote the remediation of contaminated land for the purpose of reducing risk and harm to human health or any other aspects of the environment.

57. The existing development has received approval in 2009 under the development consent 08/DA-411, indicating that the site is unlikely to be subject to further contamination.

58. This Planning Proposal is for the purpose of permitting land uses only and is consistent with this SEPP.

5.4 S117 Ministerial Directions

59. Ministerial Directions under Section 117 of the Environmental Planning and Assessment Act 1979 set out a range of matters to be considered when prepared an amendment to a Local Environmental Plan.

60. The Planning Proposal is consistent with all relevant ministerial directions as assessed by the applicant in Table 4 below:

Table 4 – Compliance of the Planning Proposal with relevant S117 Directions

S117 Direction	Assessment
1.1 Business and Industrial Zones	This proposal protects the employment that stems from the existing shopping centre, as well as expanding the variety of employment opportunities by permitting the use of a centre-based child care facility and bulky goods premise. This proposal will result in the site continuing to be used for purposes that are not industrial, but will not result in the reduction of available industrial land. The existing uses were considered appropriate in the approval of the DA in 2009 (08/DA-411) and will not adversely affect local employment opportunities.
3.5 Development Near Licensed Aerodromes	This proposal does not include a change to the existing built form. It is to permit uses only.
6.1 Approval and Referral Requirements	This proposal does not include provisions for referrals or concurrences of future development applications.
6.2 Reserving Land for Public Purposes	This proposal does not affect land for public purposes.
7.1 Implementation of A Plan for Growing Sydney	The proposal is consistent with the objectives of A Plan For Growing Sydney, as assessed in Section 5.1 above.

5.5 Existing Use Rights

61. Under Division 10 Existing uses of Part 4 Development assessment of the Environmental Planning and Assessment Act 1979, existing use is defined as the use of a building, work or land for which development consent was granted before the commencement of a provision of an environmental planning instrument having the effect of prohibiting the use.

62. In accordance with the above definition, the existing development on the site is deemed to possess existing use rights in that the uses of “supermarket, bulky goods retail, gymnasium and office with basement parking” were approved in 2009 prior to the commencement of the HLEP 2012.

63. The Planning Proposal request to permit the prohibited land uses of retail and bulky goods premises will not establish a precedent for the expansion of retail and non-industrial uses in an industrial zone.

64. There will be no reduction to the availability of existing industrial land. The proposal seeks to enable the continued usage of existing non-industrial purposes, which is isolated to the subject site through existing use rights.

65. The existing retail uses are supported by the draft Georges River Employment Lands Study, which does not indicate that the site should cater to another use, including industrial, as the provision of a large supermarket offers amenity to the area. As such, existing employment will be protected.

66. The proposed Schedule 1 amendment to HLEP 2012 to enable retail premises and bulky goods premises will legitimise these current uses on the site and remove the ambiguity associated with the existing use rights of ‘supermarket’ and ‘bulky goods retail’ as these terms are not Standard Instrument terms defined in the HLEP 2012.

67. No additional retail purposes are proposed on the site.

5.6 Standard Instrument (Local Environmental Plans) Amendment Order

68. Earlier this year, the NSW State Government released the draft Standard Instrument (Local Environmental Plans) Amendment Order (No 2) 2016 which proposes to amend all Local Environmental Plans to permit centre-based child care facilities in all R2 Low Density Residential and IN2 Light Industrial zones.

69. The intent of the draft Amendment Order was to allow child care centres in more locations closer to homes and workplaces.

70. On 30 August 2017, the Standard Instrument (Local Environmental Plans) Amendment (Child Care) Order 2017 was passed.

71. The Standard Instrument Amendment (Child Care) Order 2017 features the replacement of the term ‘child care centres’ with the amended term ‘centre-based child care facilities’. All references to the standard instrument term ‘child care centres’ in this report have been updated to ‘centre-based child care facilities’ to reflect the Amendment Order.

72. The Standard Instrument Amendment (Child Care) Order 2017 has carried out the intent of the draft by permitting centre-based child care facilities in all R2 Low Density Residential zones with development consent. However, the same amendment has not been made for all IN2 Light Industrial zones. As such, a Schedule 1 amendment is required to permit centre-based child care facilities on the subject site.

73. The Planning Proposal was assessed prior to the gazettal of the Standard Amendment (Child Care) Order 2017. At the time of assessment, the request to permit centre-based child care facilities on the subject site is aligned with the intent of the Standard Instrument Amendment Order (No 2) 2016 and is deemed to be appropriate for the site.

74. The site is located at the edge of the Peakhurst Industrial Precinct and it is immediately adjacent to residential land and natural reserves (refer to Aerial View above in Figure 1).

75. In light of its existing site context and present retail uses on the site, the proposed land use of centre-based child care facilities will present minimal additional conflicts with existing developments on surrounding IN2 Light Industrial land.

76. The applicant has advised that the proposed centre-based child care facility is intended to be located within the existing Mortdale Plaza shopping centre, which will not create any reduction to the availability of existing industrial land. Permitting the use of a centre-based child care facility on the site will contribute to the vibrancy to this local shopping centre by offering an essential service close to homes and workplaces.

77. Furthermore, the Kogarah Local Environmental Plan 2012 permits centre-based child care facilities in its IN2 Light Industrial zoned lands with the intention of supporting and encouraging a range of local services that provide for the needs of the local community.

78. In the process of harmonising the existing Kogarah and Hurstville Local Environmental Plans, it is considered that centre-based child care facilities may be appropriately located within IN2 Light Industrial zones to meet the growing demand for child care facilities across Sydney. The absence of heavy and obnoxious industries within the Light Industrial zones of the Georges River LGA allows long term planning that encourages local services like child care facilities which meet the needs of local communities without disrupting existing light industrial uses.

79. It should be noted that all future development applications for the purpose of a centre-based child care facility will be subject to a stringent assessment under the State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017, the Child Care Planning Guideline as well as an evaluation under section 79C of the Environmental Planning and Assessment Act 1979.

6 VOLUNTARY PLANNING AGREEMENT

80. The Voluntary Planning Agreement (“VPA”) Policy was adopted on 1 August 2016 and sets out Council’s objectives in relation to the use of planning agreements. The Policy has been consistently applied to planning proposals and development applications alike since its adoption.

81. Clause 5.3 of the Policy states that where either a Planning Proposal is proposed, or development consent is sought, which will result in an exceedance of development standards, resulting in an inherent increase in value of the land or development, the concept of land value capture may be used to assess the appropriate contribution.

82. The proposal does not seek development uplift, and is only concerned with land use permissibility. As such, Council has not applied the VPA Policy to the Planning Proposal.

7 Summary of Assessment

83. As identified in the draft Georges River ELS, the subject site provides amenity to the area through the availability of retail services. The requested Schedule 1 amendment to the HLEP 2012 allows for the continuation of existing retail premises on site.

84. The existing development, Mortdale Plaza, was approved by the former Hurstville Council in 2009 for the uses of a supermarket, bulky goods retail, gymnasium and offices. As such, retail premises and bulky goods premises are considered as existing uses under Division 10 Existing uses of Part 4 Development assessment of the Environmental Planning and Assessment Act 1979 as these were approved prior to the adoption of the HLEP 2012.

85. It is considered that a precedent is unlikely to be established as the proposed uses of retail premises and bulk goods premises are only supported due to existing use rights.

86. The Planning Proposal request to permit centre-based child care facilities on the subject site is aligned with the intent of the Standard Instrument Amendment Order (No 2) 2016 which was exhibited earlier this year by the NSW Government to permit centre-based child care facilities in all R2 Low Density Residential and IN2 Light Industrial zones.

87. In summary, the Planning Proposal request to permit the uses of retail premises, bulky goods premises and centre-based child care facilities by way of a Schedule 1 amendment to the HLEP 2012 is supported in relation to the site at 84D Roberts Avenue, Mortdale (legally described as Lot 21 DP 542051).

8 Community Consultation

88. Should the Planning Proposal be supported it will be forwarded to the NSW Department of Planning and Environment (“DPE”) requesting a Gateway Determination.

89. If a Gateway Determination (Approval) is issued, and subject to its conditions, it is anticipated that the Planning Proposal will be exhibited for a period of 28 days in accordance with the provisions of the Environmental Planning and Assessment Act, 1979 and Regulation, 2000 and any requirements of the Gateway Determination.

90. Exhibition material, including explanatory information, land to which the Planning Proposal applies, description of the objectives and intended outcomes, copy of the Planning Proposal and relevant maps will be available for viewing during the exhibition period on Council’s website and hard copies available at Council offices and libraries.

91. Notification of the public exhibition will be through:

· Newspaper advertisement in The St George and Sutherland Shire Leader,

· Exhibition notice on Council’s website,

· Notices in Council offices and libraries,

· Letters to State and Commonwealth Government agencies identified in the Gateway Determination (if required),

· Letters to adjoining landowners (if required, in accordance with Council’s Notification Procedures).

92. The anticipated project timeline for completion of the Planning Proposal is shown below:

Task	Anticipated Timeframe
Lodgement of Planning Proposal request	12 April 2017
Report to Georges River IHAP on Planning Proposal	21 September 2017
Report to Council on Planning Proposal	October 2017
Anticipated commencement date (date of Gateway determination)	December 2017
Timeframe for government agency consultation (pre and post exhibition as required by Gateway determination)	January 2018
Commencement and completion dates for community consultation period	February/March 2018
Dates for public hearing (if required)	N/A
Timeframe for consideration of submissions	March 2018
Reporting to Georges River IHAP on community consultation	March 2018
Reporting to Council on community consultation and finalisation	April 2018
Submission to the Department to finalise the LEP	April 2018
Anticipated date for notification.	April 2018

93. It is noted that the project timeline will be assessed by the DPE and may be amended by the Gateway Determination.

9 NEXT STEPS

94. If the Planning Proposal is endorsed by Council it will be forwarded to the delegate of the Greater Sydney Commission for a Gateway Determination under Section 56 of the Environmental Planning and Assessment Act 1979.

95. If Council resolves not to support the Planning Proposal, the Applicant has the opportunity to request a pre-Gateway Review by the NSW Planning Panels under the delegation of the Greater Sydney Commission. The applicant has 40 days from the date of notification of Council’s decision to request a review.

10 CONCLUSION

96. It is recommended that Council endorse forwarding of the Planning Proposal to the delegate of the Greater Sydney Commission for a Gateway Determination under Section 56 of the Environmental Planning and Assessment Act 1979.

11 FINANCIAL IMPLICATIONS

97. No budget impact for this report – Planning Proposal is fully funded by the applicant.

File Reference

D17/168392

ATTACHMENTS

Attachment View1

IHAP Report - 84D Roberts Avenue, Mortdale - 21 September 2017

Georges River Council – Environment and Planning Standing Committee Meeting - Monday, 9 October 2017 Page 44

Item: ENV002-17 Planning Proposal (PP17/42) - Nos 73 Vista Street, Sans Souci

Author: Coordinator Strategic Planning and Strategic Planner

Directorate: Environment and Planning

Matter Type: Committee Reports

Recommendation

(a) That Council not support the Planning Proposal to amend Kogarah Local Environmental Plan 2012 (“Kogarah LEP 2012”) in relation to Lots 1 DP320605, Lot 1 DP1115986, Lot 392 DP752056 and Lot 489 DP752056 known as No 73 Vista Street, Sans Souci for the following reasons:

(i) The height and density proposed on the subject site is inconsistent with the Seniors Housing SEPP, Clause 6.8 of Kogarah LEP 2012, the former Kogarah Council’s endorsed Housing Strategy and the objectives of the R2 Low Density Residential zone in the recently gazetted Kogarah LEP 2012 (Amendment No 2); and

(ii) The proposed development resulting from the Planning Proposal is inappropriate in terms of built form, scale and density and will be out of context with the character of the immediate locality when viewed both from Vista Street and the Georges River foreshore; and

(iii) There is inadequate justification provided in the documentation submitted with the Planning Proposal to support the increased height and density on the subject site; and

(iv) The outcomes of the Planning Proposal do not have strategic merit and the development, as proposed is inconsistent with the Strategic Merit Test as outlined in the NSW Department of Planning’s Rezoning Reviews (August 2016); and

(v) The Department of Planning does not support the use of prescriptive Schedule 1 Amendments such as that proposed in the Planning Proposal.

(b) That for the reasons outlined in (a) above, the Council not forward the Planning Proposal to the delegate of the Greater Sydney Commission for a Gateway Determination under Section 55 and 56 of the Environmental Planning & Assessment Act 1979.

Executive Summary

1. JBA Urban Planning Consultants submitted a Planning Proposal request (PP17/42) on behalf of Naneski Developments Pty Ltd on 15 March 2017 seeking the amendment of the Kogarah Local Environmental Plan 2012 (“KLEP 2012”) in relation to the street address at 73 Vista Street, Sans Souci including the following allotments:

a) Lot 1, DP320605

b) Lot 1, DP1115986

c) Lot 392, DP752056

d) Lot 489, DP752056

e) Lot 1, DP181450

Figure 1 – Aerial Plan & SIX Maps Allotment Plan

2. With respect to the allotment known as Lot 1, DP 181450 (75 Vista Street, Sans Souci) the applicant was advised that this parcel of land is in the ownership of Georges River Council and should not form part of the Planning Proposal.

3. The applicant in correspondence to Council advised that the inclusion of the allotment was an error and as such Lot 1, DP 181450 does not form part of the Planning Proposal.

4. The Planning Proposal seeks to:

a) Rezone Lot 392, DP752056 and part of Lot 489, DP752056 from W2 Recreational Waterways to R2 Low Density Residential; and

b) Amend the Foreshore Building Line to realign from the new boundary line of the R2 Low Density Residential zone, at a depth of 7.6m from Mean High Water; and

c) Amend Schedule 1 Additional Permitted Uses to include a provision that allows for additional building height from 9m to 12.45m – 18.9m and floor space ratio from 0.28:1 to 2.35:1 where the development is for the purpose of Seniors Housing.

5. The Planning Proposal was submitted prior to the gazettal of KLEP 2012 Amendment No. 2 (known as the New City Plan, gazetted on 26 May 2017). At that time the foreshore area was zoned E4 Environmental Living. In preparing the New City Plan, these areas were rezoned to R2 Low Density Residential. As such, all E4 zoned areas identified within the Planning Proposal should be regarded as R2 Low Density Residential for the purpose of this report in line with the KLEP 2012 (Amendment No 2).

6. This Planning Proposal is accompanied by an Indicative Scheme prepared by Marchese Partners demonstrating the proposed built form. An amended Indicative Scheme was presented and has been considered by the St George Design Review Panel (“DRP”) on 6 July 2017.

7. The amended Indicative Scheme (refer to Attachment 1) significantly exceeds the existing KLEP 2012 building height and floor space ratio (“FSR”) controls and comprises the following:

a) Height increase from 9m to 12.45m – 18.9m

b) FSR increase from 0.28:1 to approx. 2.35:1

c) 48 seniors living units as per breakdown below:

i. 17 one bedroom units

ii. 21 two bedroom units

iii. 10 three bedroom units

d) 100 car parking spaces

e) 2 levels of basement

f) 4 storey building form at streetscape

g) 6 storey building form at rear waterway (due to existing topography through cut and fill)

h) Outdoor terrace at rooftop level

8. The Design Review Panel (DRP) considered the Planning Proposal, including the Visual Impact Assessment (refer to Attachment 2) which was requested by Council officers and provided by the applicant on 11 May 2017.

9. The DRP did not support the Planning Proposal. The proposal is considered to be out of context with the surrounding built environment and the character of the R2 Low Density Residential zone. A copy of the DRP minutes is contained in Attachment 3.

10. Council’s officer also sought advice from the NSW Department of Planning and Environment (“DPE”) in regards to the proposed KLEP 2012 Schedule 1 amendments.

11. The DPE provided the response that prescriptive Schedule 1 amendments, such as the one proposed, are not generally encouraged and instead a spot rezoning Planning Proposal would be an appropriate alternative mechanism. They have also advised that there is potential that such an amendment would not be supported at a legal drafting stage.

12. On two separate occasions dated 17 March 2017 and 27 July 2017, Council had advised the applicant that the Planning Proposal in its current form cannot be supported due to reasons as noted above. The applicant was presented with options to withdraw the Planning Proposal or that a report will be prepared and forwarded to Council’s IHAP for consideration with a recommendation for refusal.

13. On both occasions, the applicant had chosen to progress the Planning Proposal despite being presented with the option for withdrawal.

14. A report was considered by the IHAP on 21 September 2017, where it resolved the following:

1. That the Georges River IHAP recommends to the Council that the Planning Proposal to amend Kogarah Local Environmental Plan 2012 (“Kogarah LEP 2012”) in relation to Lots 1 DP320605, Lot 1 DP1115986, Lot 392 DP752056 and Lot 489 DP752056 known as No 73 Vista Street, Sans Souci to:

§ Rezone Lot 392, DP752056 and Lot 489, DP752056 from W2 Recreational Waterways to R2 Low Density Residential; and

§ Amend the Foreshore Building Line to realign from the new boundary line of the R2 Low Density Residential zone, at a depth of 7.6m from Mean High Water; and

§ Amend Schedule 1 Additional Permitted Uses to include a provision that allows for additional building height from 9m to 12.45m – 18.9m and floor space ratio from 0.28:1 to 2.35:1 where the development is for the purpose of Seniors Housing.

not be supported for the following reasons:

(a) The height and density proposed on the subject site is inconsistent with the Seniors Housing SEPP, Clause 6.8 of Kogarah LEP 2012, the former Kogarah Council’s endorsed Housing Strategy and the objectives of the R2 Low Density Residential zone in the recently gazetted Kogarah LEP 2012 (Amendment No 2); and

(b) The proposed development resulting from the Planning Proposal is inappropriate in terms of built form, scale and density and will be out of context with the character of the immediate locality when viewed both from Vista Street and the Georges River foreshore; and

(c) There is inadequate justification provided in the documentation submitted with the Planning Proposal to support the increased height and density on the subject site; and

(d) The outcomes of the Planning Proposal do not have strategic merit and the development, as proposed is inconsistent with the Strategic Merit Test as outlined in the NSW Department of Planning’s Rezoning Reviews (August 2016); and

(e) The Department of Planning does not support the use of prescriptive Schedule 1 Amendments such as that proposed in the Planning Proposal.

2. That for the reasons outlined in (1) above, the Council will not forward the Planning Proposal to the delegate of the Greater Sydney Commission for a Gateway Determination under Section 55 and 56 of the Environmental Planning & Assessment Act 1979.

3. That Council be advised of the IHAP’s recommendation.

Report in Full

INTRODUCTION

2. JBA Urban Planning Consultants submitted a Planning Proposal request (PP17/42) on behalf of Naneski Developments Pty Ltd on 15 March 2017 seeking the amendment of the Kogarah Local Environmental Plan 2012 (“KLEP 2012”) in relation to the street address at 73 Vista Street, Sans Souci.

3. The Planning Proposal seeks to rezone the part of the site zoned W2 Recreational Waterways to R2 Low Density Residential under the KLEP 2012, and subsequently amend the Foreshore Building Line (“FBL”) to realign from the new boundary of the R2 zone at a depth of 7.6m from the Mean High Water Mark.

4. The Planning Proposal also seeks to amend Schedule 1 Additional permitted use of the KLEP 2012 to include a provision that allows for additional height and FSR on the subject site where the development is for the purposes of Seniors Housing.

5. An Indicative Scheme for a Seniors Housing development was submitted to Council and the proposal was considered at the St George Design Review Panel (“DRP”) on 6 July 2017.

6. The DRP did not support the Planning Proposal as it was considered to be completely out of context with the surrounding built environment and the character of the R2 Low Density Residential zone.

7. Council’s officer also sought advice from the NSW Department of Planning and Environment (“DPE”) in regards to the proposed KLEP 2012 Schedule 1 amendments.

8. In the preliminary advice provided by the DPE, prescriptive Schedule 1 amendments such as the one proposed are not generally encouraged and an application to rezone the land to reflect the proposed development is preferable.

9. Table 1 below provides an overview of the chronology of the assessment of the Planning Proposal by Council’s officers:

Table 1 – Chronology of Assessment of Planning Proposal

Date	Event
17 November 2016	The applicant had a Pre-Planning Proposal meeting with Council strategic planning officers. The applicant was advised by Council that the future urban form should be respectful of the existing character of the area and reduce the height to as close to 9.5m as possible at the street.
9 March 2017	Planning Proposal lodged.
15 March 2017	Council strategic planning officer sought advice from the Department of Planning & Environment with regards to the Planning Proposal. Response received from the Department of Planning & Environment providing preliminary advice that the proposed amendment is not an appropriate application of the Schedule 1 mechanism.
17 March 2017	Letter sent to applicant advising that the Planning Proposal in its current form cannot be supported due to the bulk and scale of the development. The applicant was presented with two options: 1. A report will be prepared and forwarded to Council’s IHAP for consideration with a recommendation for refusal. 2. Withdrawal of the Planning Proposal with a refund of the majority of fees paid.
3 April 2017	Applicant advised that they will not withdraw the Planning Proposal. Council informed the applicant that a report will be prepared for IHAP consideration.
11 May 2017	Visual Impact Statement was submitted by the applicant as per Council’s request.
26 May 2017	Gazettal of Kogarah Local Environmental Plan 2012 Amendment No. 2 (New City Plan) which had rezoned all E4 Environmental Living areas to R2 Low Density Residential.
6 July 2017	An amended Indicative Scheme of the proposed development was presented at the Design Review Panel (“DRP”) meeting. At its meeting, the DRP considered the Planning Proposal (including the amended Indicative Scheme and Visual Impact Assessment) with the recommendation that the proposal should not be supported.
27 July 2017	2nd letter sent to the applicant advising of the outcome of the DRP and advising that the Planning Proposal in its current form cannot be supported. The applicant was presented with three options: 1. Amendment of the Planning Proposal to comprise only of the rezoning from W2 Recreational Waterways to R2 Low Density Residential, and amending the foreshore building line to realign with the new boundary line of the R2 Low Density Residential zone. 2. Withdrawal of the Planning Proposal with a partial refund of fees paid. 3. A report will be prepared and forwarded to Council’s IHAP for consideration with a recommendation for refusal.
9 August 2017	Applicant advised that they will not withdraw the Planning Proposal and advised that they will be submitting additional information to address the issues raised in Council’s letter dated 27 July 2017.
12 September 2017	The applicant was informed that a report will be presented by Council to IHAP as no further information has been received. Details of the upcoming IHAP meeting were also provided to the applicant.
21 September 2017	At its meeting, the Georges River IHAP considered a report on the Planning Proposal and supported the Council officer’s recommendation to not support the Planning Proposal in its current form.

SITE DESCRIPTION

2.1 Overview of the Site

10. The subject site is known as 73 Vista Street, Sans Souci and includes four (4) lots, as shown in Figure 2 and legally described as per Table 2.

Table 2 – Legal Site Description

Lot / DP	KLEP 2012 Land Use Zone
Lot 1 DP 320605	R2 – Low Density Residential
Lot 1 DP 1115986	R2 – Low Density Residential
Lot 392 DP 752056	W2 – Recreational Waterways
Lot 489 DP 752056	W2 – Recreational Waterways

Figure 2 – Subject site at 73 Vista Street, Sans Souci (as outlined in red)

11. The site has a total area of approximately 2,091m² and the following boundaries:

· Vista Street frontage of approx. 34.75m

· Rear boundary adjoining Kogarah Bay of approx. 45m

· Side boundary adjoining No. 71 (eastern segment) of approx. 48.24m

· Side boundary adjoining No. 71 (western side) of approx. 14.33m

· Side boundary adjoining Anderson Park (eastern segment) of approx. 7.53m

· Side boundary adjoining Anderson Park (western segment) of approx. 32.46m

12. The ground surface of the site slopes down from street frontage to the rear boundary with the highest point located the north eastern boundary corner (RL 8.76), and the lowest at the south western boundary corner (RL -0.47) with a total difference of 9.23m in height.

13. The site is currently occupied by a two storey brick residential dwelling and small brick shed, which are located within the R2 zoned portion of the site. A large shed and garage and associated wet dock are located predominantly within the site’s W2 zoned portion (refer to Figure 2 above).

14. Due to the slope of the land, the site appears as a single storey dwelling house when viewed from the street. A jetty extends into the Georges River waterway from the site’s western boundary.

15. Views of the site are shown in Figures 3-6.

Figure 3 – View of existing street frontage – brick dwelling

Figure 4 – View of large shed from Vista Street

Figure 5 – Rear view of existing dwelling and small shed to the left

Figure 6 – View of Kogarah Bay at rear boundary

2.2 Surrounding Land

16. The development surrounding the site generally comprises buildings of a similar scale to the subject site, being low density residential dwellings of one to two storeys in height. The site has water frontage to Kogarah Bay.

17. Development to the north of the site consists of low density residential development with the majority of residential dwellings along the western side of Vista Street having pools and jetties extending into the waterways. Further north of the site is the Botany Bay Yacht Club which provides both slipping and hardstand facilities, including a main pontoon and moorings which can accommodate a total of three (3) yachts.

18. Development to the south of the site consists of an allotment zoned RE1 Public Recreation (Anderson Park) which has frontage to Kogarah Bay. Adjoining the public reserve to the south is the St George Motor Boat Club which accommodates the following:

· Club facilities including reception venues;

· At-grade car parking facilities provided for both members and guests accessible from Wellington Street; and

· A floating marina which provides over 130 berths with both short and long term leases available.

19. East of the sites development is low density residential dwellings of one to two storeys, interspersed with more recently developed dual occupancy developments continued further eastward to Rocky Point Road.

20. Views of the surrounding land are shown in Figures 7-10 below.

Figure 7 – Stairway down to Anderson Park from Vista Street

Figure 8 – Pathway from Anderson Park leading to the St George Motor Boat Club

Figure 9 – View of Vista Street streetscape 01

Figure 10 – View of Vista Street streetscape 02

21. Vista Street is a quiet residential street mainly used by the residents. There are street parking available on both sides of the street.

22. The site only serviced by bus transport facilities as the closest train station is at Kogarah Town Centre, which is located approx. 5km away.

23. The site has limited access to public transport. Bus transport facilities are available on Wellington Street and Nelson Street at approximately 350m away (refer Figure 11) but both bus stops offer the same bus routes numbers 303 and X03. These bus route services are available every half hour during peak periods and hourly during off peak periods.

Figure 11 – Distance to public transport from site (source: JBA Planning Proposal)

PLANNING STRATEGIES, POLICIES AND CONTROLS

3.1 Existing Planning Controls

24. The site is currently zoned R2 Low Density Residential and W2 Recreational Waterways under the KLEP 2012 (refer to Figure 12). The site is located within a low density locality, adjacent to Council’s Anderson Park which is zoned RE1 Public Recreation.

Figure 12 – KLEP 2012 Land Use Zoning Map

25. The site is identified as being affected by the Foreshore Building Line (“FBL”), refer to Figure 13 below. The FBL is currently mapped at a 7.6m offset from the rear boundary of the R2 Low Density Residential zone.

Figure 13 – KLEP 2012 Foreshore Building Line Map

26. The site has a maximum building height of 9m under the KLEP 2012, refer to Figure 14 below. All surrounding residential sites have the same maximum height of 9m.

Figure 14 – KLEP 2012 Height of Buildings Map

27. The site is located within Area 1 under the KLEP 2012 Floor Space Ratio (“FSR”) Map (refer to Figure 15 below). Therefore Clause 4.4A Exceptions to floor space ratio for residential accommodation in Zone R2 of the KLEP 2012 is applicable to the site.

Figure 15 – KLEP 2012 Floor Space Ratio Map

28. Clause 4.4A applies a sliding scale to the FSR calculations of a site in relation to the total site area. Since the subject site has been identified to have a site area of approx. 2,091m², the following equation applies (refer to extract from Clause 4.4A below):

29. As per Clause 4.4A, the site has a maximum FSR of approximately 0.28:1.

APPLICANT’S PLANNING PROPOSAL REQUEST

4.1 Background

30. Nanevski Developments accompanied by JBA and Marchese Partners met with Council officers on 17 November 2016 to present a development concept for Seniors Housing and to discuss the merits and process for a Planning Proposal for the site at 73 Vista Street, Sans Souci.

31. This preliminary development concept presented a 4-6 storey building form with two basement levels achieving a height of 13-19m and an FSR in the region of 2.35:1.

32. Council advised that the Planning Proposal should address A Guide to Planning Proposals and specifically the Strategic Merit Test and provided more specific advice, summarised as follows:

a. The Planning Proposal should precede the Development Application rather than being a concurrent lodgement;

b. Clause 6.8 of New City Plan seeks to encourage seniors living in the R2 zone;

c. Include DCP style diagrams – the DCP can be amended to include site specific controls e.g. Kogarah Town Centre; and

d. Include a new map that indicates the realigned foreshore building line at 7.6m.

33. Regarding the merits of the development concept Council provided further advice:

· The proposal should link the future land use to the built form controls sought – consider the implications of R2 and R3 rezoning options;

· The proposal should respect the future urban form likely within the zone – reduce the height to as close to 9.5m as possible at the street; and

· The proposal should respect the iconic views to the water – ensure a views analysis accompanies the Planning Proposal that assesses the proposal against a complying scheme.

4.2 Summary of Planning Proposal Request

34. JBA Urban Planning Consultants submitted a Planning Proposal request (PP17/42) on behalf of Nanevski Developments on 15 March 2017 seeking the amendment of the KLEP 2012 in relation to the street address at 73 Vista Street, Sans Souci (refer to Figure 2 above).

35. The Planning Proposal seeks to:

· Rezone Lot 392, DP752056 and part of Lot 489, DP752056 from W2 Recreational Waterways to R2 Low Density Residential; and

· Amend the Foreshore Building Line to realign from the new boundary line of the R2 Low Density Residential zone, at a depth of 7.6m; and

· Amend the KLEP 2012 Maps to reflect the above proposals; and

· Amend Schedule 1 Additional Permitted Uses of the KLEP 2012 to insert a clause with specific reference to the subject site as follows:

Use of certain land at 73 Vista Street, Sans Souci

1. This clause applies to land at 73 Vista Street, Sans Souci, being Lots Lot 1 DP 320605, Lot 1 DP 1115986, Lot 489 DP 752056 and Lot 392 DP 752056;

2. The objective of this clause is to provide for additional floor space and height on the land to which this clause applies for the purposes of Seniors Housing;

3. Notwithstanding any other provisions, development for the purposes of Seniors Housing is permitted with development consent if the floor space ratio does not exceed 2.35:1 and the building height does not exceed RL 20.4.

4. Notwithstanding Clause 3 above; building height may exceed RL 20.4 to the extent that;

4.1 There is a lift overrun to a maximum height of RL 21.6;

4.2 There is a rooftop communal open space; the building height may exceed RL 20.4 to accommodate associated structures including parapets, planters, access, lifts and stairs subject to merit assessment

36. In summary, the Planning Proposal requests the following changes as per Table 3 below:

Table 3 – Comparison of Current Controls and Planning Proposal

	Current Controls	Planning Proposal
Land Use Zone	W2 – Recreational Waterways - Lot 392 DP 752056 - Lot 489 DP 752056	R2 – Low Density Residential - Lot 392 DP 752056 - Lot 489 DP 752056
Foreshore Building Line
Height of Building	9 metres	12.45 metres (Front – Vista Street) 18.9 metres (Rear – Georges River)
Floor Space Ratio	0.28:1 (Clause 4.4A)	2.35:1

4.3 Summary of Indicative Scheme

37. This Planning Proposal is accompanied by an Indicative Scheme prepared by Marchese Partners demonstrating the proposed built form. The submitted scheme was superseded by a revised version on 7 July 2017 (refer to Attachment 1) comprising of the following:

a. 48 seniors living units as per breakdown below:

i. 17 one bedroom units

ii. 21 two bedroom units

iii. 10 three bedroom units

b. 100 car parking spaces

c. 2 levels of basement

d. 4 storey building form at streetscape

e. 6 storey building form at rear waterway (due to existing topography through cut and fill)

f. Outdoor terrace at rooftop level with lift overrun

38. Council also requested that a Visual Impact Assessment (“VIA”) be submitted. A VIA prepared by Arcadia Landscape Architecture was submitted on 11 May 2017 (refer to Attachment 2).

4.4 St George Design Review Panel

39. The St George Design Review Panel (“DRP”) considered the Planning Proposal request at its meeting dated 6 July 2017. Comments provided by the DRP are summarised below with respect to the applicable Design Quality Principles set out in State Environmental Planning Policy No. 65 Design Quality of Residential Flat Development (SEPP 65):

40. Context and Neighbouring Character

DRP Comment: The proposal is out of context with the surrounding built environment, which are predominantly single dwellings of no more than 3 storeys.

The proposed building is in close proximity to the boundary and may adversely impact on the existing mature trees in Anderson Park.

Council Comment: Council agrees that the proposed 4 storey building form at the street is out of context with the surrounding built environment. Furthermore, the proposed 6 storey rear building form is visually intrusive to the low-scaled context of the Kogarah Bay foreshore view catchment.

Council agrees that the proposal has not addressed the potential impact of the proposed building on the existing mature trees immediately to the south of the site. Greater side boundary setback distance should be provided.

41. Built Form and Scale

DRP Comment: The DRP had strong reservations about the bulk and form of the proposal, as confirmed by the Visual Impact Assessment which demonstrates through montage views that the form and scale is inappropriate for the site, being at least 3 storeys higher than any existing buildings within the foreshore area view catchment. It is identified that a 2-3 storey form at streetscape is more appropriate.

Council Comment: Council agrees that the proposed bulk and form greatly exceeds the urban form of its surroundings. As per Council’s comments in the pre-Planning Proposal meeting dated 17 November 2016, the applicant was advised that:

· the proposal should respect the future urban form likely within the zone – reduce the height to as close to 9.5m (maximum 3 storeys) as possible at the street; and

· the proposal should respect the iconic views to the water – ensure a views analysis accompanies the Planning Proposal that assesses the proposal against a complying scheme.

42. Density

DRP Comment: No convincing evidence was presented to justify the substantial increase in density from 0.28:1 to 2.35:1 and this density is unacceptable for the site.

Council Comment: Council agrees that no adequate justification has been provided for this substantial increase in density. This density is mainly attributed to the proposed non-compliant building height and lack of setbacks, and that density will be reduced if the building height is reduced.

43. Landscape

DRP Comment: No landscape plans were provided with the submission. The proposal does not suitably blend with the existing landscape and built form and relies on additional trees to be planted in Anderson Park to screen the proposed building, rather than allowing for substantial setbacks and planting within the subject property.

Council Comment: Council agrees that the proposal has neglected to create a visual and physical connection with the existing public reserve. The proposal has not utilised its advantageous location of being immediately adjacent to Anderson Park. Side setbacks should be increased and consideration should be made to create pedestrian connections between the site and the park as per the design principles stipulated by the Seniors Housing SEPP.

44. Amenity

DRP Comment: The proponent proposes a variety of communal services within the proposal but there is no guarantee these will remain in final designs.

Council Comment: The proposed floor plans do not indicate any communal services or ancillary functions such as on site health care, ancillary facilities and recreational facilities. The proposal has not provided sufficient amenity for the purposes of Seniors Housing.

45. Housing Diversity and Social Interaction

DRP Comment: It is not an issue that some greater mix of housing types in this area would be desirable but the proposal for Seniors Housing only at this scale of development is not appropriate.

Council Comment: Council agrees that it is the scale of the proposed development cannot be supported. The site is considered to a suitable for accommodating Seniors Housing as per Clause 6.8 of the KLEP 2012, which intends to encourage seniors housing in the form of self-contained dwellings so as to increase the supply and diversity of housing that meets the needs of seniors in Zone R2 Low Density Residential. It should be noted that seniors housing is only permitted under Clause 6.8 if the building height does not exceed 8m and the floor space ratio does not exceed 0.5:1. The proposal significantly exceeds the provisions of this clause with a proposed building height of 12.45m – 18.9m and FSR of approx. 2.35:1. No justification has been provided by the applicant in this regard.

46. Aesthetics

DRP Comment: The proposal is too visually assertive for its waterfront locality. The DRP does not accept the conclusion of the Visual Impact Assessment as the visual impacts of the proposal is considered ‘High’ and unacceptable.

Council Comment: Council agrees that the proposal is of a ‘High’ visual impact to its surrounding context, both at streetscape and the Kogarah Bay foreshore to the rear. A lowered scale which is appropriate to the surrounding 2-3 storey setting is more likely to be supported.

47. In summary, the DRP provided the recommendation that the Planning Proposal cannot be supported due to the inappropriate built form, scale, and building density proposed, which is out of context with the surrounding built environment.

48. A copy of the St George DRP Minutes is included in Attachment 3.

ASSESSMENT OF THE PLANNING PROPOSAL

5.1 Strategic Merit

49. An assessment has been undertaken in accordance with the requirements of the Strategic Merit Test as outlined in the NSW Department of Planning’s Rezoning Reviews (August 2016).

50. The key factor in determining whether a proposal should proceed to a Gateway determination should be its strategic merit. A proposal that seeks to amend controls that are less than 5 years old will only be considered where it clearly meets the Strategic Merit Test. Based on the Strategic Merit Test, the following corresponding comments are provided:

1. Consistent with the relevant draft district plan or corridor/precinct plan released for public comment.

Although the proposal supports the principles of improving housing diversity and delivering on the South District’s five year housing supply target, as well as encouraging Seniors Housing in waterfront areas (identified in the former Kogarah Council’s Housing Strategy, and the Kogarah Ageing Strategy), it is considered that the proposed height and density on the site is inconsistent with the former Kogarah Council’s endorsed Housing Strategy and the recently gazetted KLEP 2012 Amendment No. 2 - New City Plan (dated 26 May 2017).

Kogarah LEP 2012 (Amendment No 2) includes a site specific clause to encourage seniors housing. Clause 6.8 Seniors housing—self-contained dwellings in Zone R2 encourages seniors housing in the form of self-contained dwellings appropriate to the low density setting. The proposed scale and typology of the development is unsuited to the R2 Low Density zoning of the Vista Street locality, therefore it is inconsistent with the KLEP 2012.

2. Consistent with a relevant local strategy that has been endorsed by the Department.

The Planning Proposal is inconsistent with the provisions of the KLEP 2012 Amendment No. 2 - New City Plan, which has proposed to retain a height and FSR consistent with the surrounding low density residential development. The amendment was recently gazetted on 26 May 2017 and the applicant was made fully aware of the KLEP 2012 amendment at the time of the Planning Proposal’s preparation and submission.

There has been inadequate justification provided with respect to the proposed height and FSR. The Visual Impact Assessment illustrates the proposal within a bayside setting. The site is clearly visible from the western bank of Kogarah Bay. The proposed 6 storey building form dominates the low density setting of the foreshore area, which is considered to have a significant impact on the existing views of the surrounding dwellings due to the visually intrusive scale of the development.

3. Responding to a change in circumstances, such as the investment in new infrastructure or changing demographic trends that have not been recognised by existing planning controls.

No significant investment in infrastructure is proposed in the locality and there are no changing demographic trends in the area.

5.2 Strategic Planning Context

51. Consideration of the Planning Proposal request in relation to A Plan for Growing Sydney (Metropolitan Strategy) and draft South District Plan is provided below.

A Plan for Growing Sydney (Metropolitan Strategy)

52. The applicant has nominated a set of Goals and Directions from A Plan for Growing Sydney (Metropolitan Strategy) in their justification of the Planning Proposal. Council’s comments with regards to the consistency of the Planning Proposal with the aims of the Metropolitan Strategy are as follows.

53. Goal 1: A competitive economy with world-class services and transport

The proposed scheme solely features Seniors Housing, which is a type of residential accommodation. The Indicative Scheme does not propose any other ancillary functions including on site healthcare or maintenance facilities. The proposal does not have any contributions to Sydney’s economy nor does it propose the delivery of new infrastructure.

54. Goal 2: A city of housing choice, with homes that meet our needs and lifestyles

Direction 2.1: Accelerate housing supply across Sydney

Whilst the proposal will deliver additional dwellings, the Indicative Scheme presents a residential flat building typology within a R2 Low Density Residential zone characterised by detached residential dwellings. The proposed type, scale, and bulk of development are all incompatible with the existing character of the locality.

55. Direction 2.2: Accelerate urban renewal across Sydney – providing homes closer to jobs

The Metropolitan Strategy nominates suitable locations for urban renewal as places that are located near centres on the existing public transport network. The subject site is not located in a place where it is readily accessible by public transport. Whilst the Planning Proposal intends to enable a turnover of existing housing stocks by providing Seniors Housing for local residents to downsize into, it fails to address how urban renewal will be achieved and where it will occur.

56. Direction 2.3: Improve housing choice to suit different needs and lifestyles

As noted above in the comments for Direction 2.1, the proposal is incompatible with the existing character of its locality despite being able to provide additional Seniors Housing.

57. Goal 3: A great place to live with communities that are strong, healthy and well connected

Direction 3.1: Revitalise existing suburbs

As noted above, whilst the provision for Seniors Housing is encouraged in R2 Low Density Residential zones, it is the residential flat building typology of the development that cannot be supported due to its incompatibility with surrounding developments and its impact on the low scale character of the area.

58. Goal 4: A sustainable and resilient city that protects the natural environment and has a balanced approach to the use of land and resources

Direction 4.1: Protect our natural environment and biodiversity

The proposed rezoning of the existing W2 Recreational Waterways portion of the site into R2 Low Density Residential will not significantly affect the existing foreshore area as the W2 zone is identified as a mapping anomaly. The existing landform suggests that this portion of the site has been filled, with a retaining seawall built along the current western edge of the site. Therefore the current true mean high water mark is located further west towards Kogarah Bay, aligning with the current seawall and subdivision boundary.

Currently, the site is physically separated from Anderson Park by a side boundary fence which prevents public access from the park. There are opportunities to provide pedestrian access between the proposed development and the park to improve amenity for both the residents and park users. However, the Indicative Scheme does not identify any proposed landscaping or physical connection.

Draft South District Plan

59. The draft South District Plan proposes a 20-year vision by setting out aspirations and proposals for the South District. The applicant has not provided strategic justification in relation to the draft South District Plan.

60. The following priorities and actions have been identified by Council’s officer as being relevant to the Planning Proposal:

Priorities & Actions Relevant to the Planning Proposal

A Liveable City

Improve housing choice

Improve housing diversity and affordability

Create great places in the South District

Respond to people’s need for services

A Sustainable City

Protecting the District’s waterways

Managing coastal landscapes

Protecting and enhancing biodiversity

Delivering Sydney’s Green Grid

61. Council’s comments with regards to the relevant priorities and actions are provided below:

It is recognised that the Planning Proposal will introduce a number of Senior Housing apartments in response to the South District’s ageing population. However, the residential flat building typology is inconsistent with the vision set out by the Kogarah Housing Strategy 2031 as the proposal is incompatible with the existing character of the surrounding R2 Low Density Residential area.

The Planning Proposal does not utilise its advantageous foreshore location, or of the adjacent Anderson Park. The proposed 6 storey building form visually dominates the foreshore area with an inappropriate bulk and scale. This visual dominance can be seen from a range of vistas across Kogarah Bay as demonstrated by the Visual Impact Assessment. Furthermore, landscape design is absent from the Indicative Scheme, which has lacked initiatives to complement the existing biodiversity provided by the adjacent park.

5.3 Council’s Local Strategic Plans

62. Consideration of the Planning Proposal request in relation to the Kogarah Ageing Strategy and Kogarah Housing Strategy 2031 is provided below.

Kogarah Ageing Strategy

63. The Kogarah Ageing Strategy establishes goals and strategies to provide a framework to ensure that the needs and aspirations of older people are recognised and addressed.

64. The applicant has not provided strategic justification in relation to the Kogarah Ageing Strategy. The following goals have been identified by Council’s officer as being relevant to the Planning Proposal with Council’s corresponding comment below:

Goals Relevant to the Planning Proposal	Council’s Comments
A Clean, Green and Sustainable City Provide park and recreation facilities and infrastructure that meets the needs of our community	The site is situated in a desirable location being immediately adjacent to an existing park (Anderson Park). However, the proposal does not seek to utilise this advantageous location with no efforts or thoughts being made to provide a physical connection between the site and Anderson Park.
A Vibrant, Safe and Inclusive City Older people in the City of Kogarah have a range of high quality and accessible services to meet their needs	The site is located in a low density residential area where it is serviced only by bus routes, and the nearest neighbourhood centre to offer a range of essential services is located approx. 1.5km away on Rocky Point Road. The limited access to essential services to meet daily needs of the residents is likely to lead to a reliance on private vehicles as the main mode of transport.
A Vibrant, Safe and Inclusive City Foster a community where older people feel included and are supported to remain safely in their homes	The applicant anticipates that the future residents will be those downsizing from the local housing stock of freestanding homes. The proposed apartment building typology presents a disparate contrast to the target market’s existing homes. This is not considered to be an appropriate transition and is likely to cause feelings of displacement.

Kogarah Housing Strategy 2031

65. The Kogarah Housing Strategy 2031 seeks to ensure a reasonable supply of new housing comes onto the market over the period from 2015 to 2031 for the former Kogarah LGA.

66. The applicant has not provided strategic justification in relation to the Kogarah Housing Strategy 2031. The following action has been identified by Council’s officer as being relevant to the Planning Proposal with Council’s corresponding comment below.

67. Action 8. Provide opportunities for seniors housing on large sites in waterfront and foreshore areas.

The intent of this action is to enable older people to downsize to smaller appropriately constructed homes. The former Kogarah Council sought to provide additional opportunities for self-contained dwellings for seniors on large sites in and around the foreshore. It was specifically stated that the development for this type of accommodation is not to be out of context with the character of the existing residential development in terms of height and density.

The proposal greatly exceeds the permitted height and FSR, and the residential flat building form significantly affects the character of the Vista Street locality.

5.4 State and Regional Statutory Framework

68. The consistency of the Planning Proposal with the relevant State Environmental Planning Policies (SEPPs) is addressed below:

State Environmental Planning Policy No. 55 – Remediation of Land

69. SEPP 55 aims to promote the remediation of contaminated land for the purpose of reducing risk and harm to human health or any other aspects of the environment.

70. The proponent has advised that a Phase 1 Contamination Report has been commissioned and all future developments on site will comply with SEPP 55 requirements.

State Environmental Planning Policy No. 65 – Design Quality of Residential Flat Development

71. The proposed development will be subject to the provisions of SEPP No 65, which aims to improve the quality of residential flat design in NSW.

72. The proponent has advised that the Indicative Scheme has been designed in accordance with SEPP 65 and the Apartment Design Guide and any future DA will demonstrate compliance with the standards contained in this SEPP.

73. The Indicative Scheme was considered by the DRP with respect to the Design Quality Principles outlined in SEPP 65. The Panel does not consider the proposal to be compliant with SEPP 65.

74. Refer to Section 4.4 above for a summary of DRP comments and considerations. A copy of the St George DRP Minutes is included in Attachment 3.

State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004

75. A preliminary assessment has been undertaken against the Seniors Housing SEPP. Council’s comments are provided below:

Site-related requirements

76. The Seniors Housing SEPP states that the residents of the proposed development must have access to shops, bank service providers and other essential retail and commercial services, community and recreation facilities, and a general medical practitioner all within 400 metres of the site by means of a suitable access pathway.

It is also required that public transport must be available within 400 metres from the site by means of a suitable access pathway.

77. The closest neighbourhood centre that offers a reasonable range of essential retail and commercial services including a post office, restaurants, supermarkets, a medical centre, and a pharmacy is located on Rocky Points Road at approx. 1.5km north of the subject site. Kogarah is the closest town centre and is located approx. 5km to the north of the site.

78. Public transport is available within 400 metres of the site (refer to Figure 11) with well-maintained pedestrian footpaths available on both sides of the street. The provision of bus stops within 400 metres of the site improves the accessibility to essential services but the residents are likely to be reliant on private vehicles as their primary mode of transport to access services that meet their daily needs such as shops and medical care.

79. Notwithstanding the above, ample of community and recreation facilities are available within 400 metres of the site including Anderson Park, Botany Bay Yacht Club, St George Motor Boat Club, and the Sans Souci neighbourhood centre which offers a small number of restaurants / cafes and retail shops. The Sans Souci Leisure Centre and Sans Souci Park are located within 500 metres of the site.

80. Whilst the site is considered to have limited accessibility to shops, bank service providers and other essential retail and commercial services, the amenity of the residents is supplemented by good access to a wide range of community and recreational facilities within 400 metres.

81. In light of the existing conditions of accessibility, the site is not considered to be an ideal location for Seniors Housing at a high density such as the one proposed due to its inaccessibility to essential shops and services.

82. The site does possess some potential to provide a small number of self-contained senior living dwellings that leverage off the proximity to existing community and recreation facilities, so as to increase the supply and diversity of housing that meets the needs of seniors in R2 Low Density Residential zones in line with the vision set out by Clause 6.8 of the KLEP 2012.

83. This initiative is also supported by the Kogarah Housing Strategy 2031 which seeks to provide additional opportunities for self-contained dwellings for seniors on large sites in and around the foreshore area at a scale that is appropriate with the surrounding built form.

Design principles

84. It is stated that the proposed development should recognise the desirable elements of the location’s current character and maintain appropriate residential character by adopting a compatible scale to adjacent developments and providing building setbacks to reduce bulk and overshadowing.

The SEPP also specifies the provision of safe pedestrian links from the site to local facilities.

85. The Vista Street locality is characterised by low density, detached dwelling houses of maximum 3 storeys. These dwelling houses are sited in relation to the sloping foreshore typology with built forms that encourage the sharing of water views to Kogarah Bay.

86. The proposed building form of 4-6 storeys exceeds the existing low density character of both the streetscape and foreshore context. It is visually intrusive and is generally double the height of the surrounding buildings which restricts view sharing opportunities. In addition, the proposed residential flat building typology is significantly out of context within the R2 Low Density Residential zone as it is a land use that is typically prohibited in the zone.

87. The proposal does not provide consideration to pedestrian connectivity and movement between the site and the recreational facility provided by the adjacent park. Currently, access to the park is provided via a stairway from Vista Street, or a driveway shared with the St George Motors Boat Club. The provision of safe pedestrian links to Anderson Park should be addressed by the proposed development.

88. As such, the proposed development does not comply with the applicable design principles stipulated by the Seniors Housing SEPP.

State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004

89. A preliminary assessment has been undertaken against the Seniors Housing SEPP. Council’s comments are provided below:

90. Site-related requirements: the Seniors Housing SEPP states that the residents of the proposed development must have access to shops, bank service providers and other essential retail and commercial services, community and recreation facilities, and the practice of a general medical practitioner all within 400 metres of the site by means of a suitable access pathway.

It is also required that public transport must be available within 400 metres from the site by means of a suitable access pathway.

91. Public transport is available within 400 metres of the site (refer to Figure 11) with well-maintained pedestrian footpaths available on both sides of the street.

However, the closest neighbourhood centre that offers a reasonable range of essential retail and commercial services including a post office, restaurants, a medical is located on Rocky Points Road at approx. 1.5km north of the subject site.

5.5 Preliminary Advice from NSW DPE

92. Council had sought preliminary advice from the NSW Department of Planning & Environment (“DPE”) with respect to the proposed use of Schedule 1 – Additional Permitted Uses to identify the height and FSR on the proposed site.

93. The Department, in this regard has advised the following in their email response dated 15 March 2017:

“…..prescriptive Schedule 1 Amendments, such as the one proposed, are not generally encouraged by the Department as it is not the intended purpose of the mechanism. There is also potential that such an amendment would not be supported at a legal drafting stage. A preferred approach to such an amendment would be to lodge a spot rezoning planning proposal to change all the planning controls.”

94. Council considers that the proposal, particularly with respect to the height fronting Vista Street should be reviewed to be consistent with the height of buildings in the R2 Low Density Residential zone.

5.6 S117 Ministerial Directions

95. Ministerial Directions under Section 117 of the Environmental Planning and Assessment Act 1979 set out a range of matters to be considered when prepared an amendment to a Local Environmental Plan.

96. S117 Ministerial Directions have not been considered as part of the assessment of this Planning Proposal as the proposed amendments to the KLEP 2012 have not met the requirements of the Strategic Merit Test and cannot be supported by Council.

VOLUNTARY PLANNING AGREEMENT

97. The Voluntary Planning Agreement (“VPA”) Policy was adopted on 1 August 2016 and sets out Council’s objectives in relation to the use of planning agreements. The Policy has been consistently applied to planning proposals and development applications alike since its adoption.

98. Clause 5.3 of the Policy states that where either a Planning Proposal is proposed, or development consent is sought, which will result in an exceedance of development standards, resulting in an inherent increase in value of the land or development, the concept of land value capture may be used to assess the appropriate contribution.

99. Clause 5.13 of the Policy states through a formula, that Council capture fifty percent (50%) of the increase in the residual land value resulting from the planning uplift sought for a site via the Planning Proposal.

100. The Planning Proposal provides for a significant uplift in the value of the land. However as Council’s officers were not supportive of the form and scale of the proposed development, discussions with respect to the provision of community benefit and the negotiation of a VPA were not entered into.

SUMMARY OF ASSESSMENT / CONCLUSION

101. The Planning Proposal request to amend Kogarah LEP 2012 in relation to Lots 1 DP320605, Lot 1 DP1115986, Lot 392 DP752056 and Lot 489 DP752056 known as No 73 Vista Street, Sans Souci

· To rezone Lot 392, DP752056 and part of Lot 489, DP752056 from W2 Recreational Waterways to R2 Low Density Residential; and

· To amend the Foreshore Building Line to realign from the new boundary line of the R2 Low Density Residential zone, at a depth of 7.6m from Mean High Water; and

· To amend Schedule 1 Additional Permitted Uses to include a provision that allows for additional building height from 9m to 12.45m – 18.9m and floor space ratio from 0.28:1 to 2.35:1 where the development is for the purpose of Seniors Housing.

is not be supported for the following reasons:

a. The height and density proposed on the subject site is inconsistent with the Seniors Housing SEPP, the former Kogarah Council’s endorsed Housing Strategy and the objectives of the R2 Low Density Residential zone in the recently gazetted Kogarah LEP 2012 (Amendment No 2); and

b. The proposed development resulting from the Planning Proposal is inappropriate in terms of built form, scale and density and will be out of context with the character of the immediate locality when viewed both from Vista Street and the Georges River foreshore; and

c. There is inadequate justification provided in the documentation submitted with the Planning Proposal to support the increased height and density on the subject site; and

d. The outcomes of the Planning Proposal do not have strategic merit and the development, as proposed is inconsistent with the Strategic Merit Test as outlined in the NSW Department of Planning’s Rezoning Reviews (August 2016); and

e. The Department of Planning does not support the use of prescriptive Schedule 1 Amendments such as that proposed in the Planning Proposal.

102. As such it is recommended that the Planning Proposal not be supported and that Council recommend that it will not request a Gateway Determination in accordance with Section 55 and 56 of the Environmental Planning & Assessment Act 1979.

Financial Implications

1. No budget impact for this report – Planning Proposal is fully funded by the applicant .

File Reference

PP17/42

ATTACHMENTS

Attachment View1	Indicative Scheme prepared by Marchese Partners
Attachment View2	Visual Impact Assessment prepared by Arcadia
Attachment View3	Design Review Panel Minutes dated 6 July 2017

Georges River Council – Environment and Planning Standing Committee Meeting - Monday, 9 October 2017 Page 134

Item: ENV003-17 Planning Proposal PP2015 0006 37-41 Treacy Street, Hurstville Treacy Street Car Park - Gateway Determination

Author: Manager Strategic Planning

Directorate: Environment and Planning

Matter Type: Committee Reports

Recommendation

(a) That Council note the conditions of the NSW Department of Planning and Environment’s Gateway Determination for Planning Proposal PP2015/0006 (Planning Proposal) for 37-41 Treacy Street, Hurstville (Treacy Street Car Park Land);

(b) That should the NSW Department of Planning and Environment indicate that the Minister for Planning is willing to enter into a Voluntary Planning Agreement in respect of the Planning Proposal, that Council:

(i) Endorse the preparation of a draft Voluntary Planning Agreement between Council and the Minister for Planning, which is to meet the provisions of the Georges River Council Policy on Voluntary Planning Agreements, including the provision of at least 90 public car parking spaces and at least 5% of the Gross Floor Area intended for residential purposes of any development, for affordable rental housing if the Planning Proposal is made, and once development consent is granted, in respect of the Treacy Street Car Park Land;

(ii) Forward the draft Voluntary Planning Agreement to the Minister for Planning with an irrevocable offer to enter into the Voluntary Planning Agreement prior to the public exhibition and the making of the Planning Proposal;

(iii) Publicly exhibit both the draft Voluntary Planning Agreement and the Planning Proposal;

(iv) Delegate to the General Manager the authority to negotiate the final terms of, and execute the Voluntary Planning Agreement, following public exhibition, at the General Manager's discretion, provided the VPA contains the requirements in clause (b)(i); and

(v) Register the Voluntary Planning Agreement on the title of the Treacy Street Car Park Land as soon as practicable after the Planning Proposal has been made.

(c) That should the NSW Department of Planning and Environment indicate that the Minister for Planning is not willing to enter into a Voluntary Planning Agreement in respect of the Planning Proposal, that Council:

(i) Approve the placing of a covenant on title of the land which provides that if the Treacy Street Car Park Land is developed, the developer must provide to Council at least 90 public car parking spaces, must develop and transfer to Council at least 5% of the Gross Floor Area intended for residential purposes of any development, for the purpose of affordable rental housing and any other public benefits necessary to address the impacts of the development;

(ii) Publicly exhibit both the Planning Proposal and the proposed covenant; and

(iii) Delegate to the General Manager the authority to sign and execute all relevant documentation to place the covenant on title of the Treacy Street Car Park Land as soon as practicable after the Planning Proposal has been made.

Executive Summary

1. Council considered a report on the Planning Proposal PP2015/0006 for 37-41 Treacy Street, Hurstville (Treacy Street Car Park) at its Meeting of 5 June 2017 (CCL085-17) and resolved to forward the Planning Proposal to the Greater Sydney Commission for a Gateway Determination under Section 56 of the Environmental Planning and Assessment Act 1979.

2. A Gateway Determination was issued by the Department of Planning and Environment (as Delegate of the Greater Sydney Commission) on 8 August 2017. A copy of the Determination is included in Attachment 1.

3. The Treacy Street Car Park is a Council owned site.

4. This report provides a summary of the requirements and conditions of the Gateway Determination and the actions to be undertaken to progress the Planning Proposal.

5. This report presents to options in relation to the Planning Proposal for the provision of public benefits, including the provision of 90 public carparking spaces and affordable housing within any future development. Based on legal advice, it is recommended that if the Minister for Planning is willing to enter into a VPA in respect of the Planning Proposal, that Council proceed to enter into a proposed draft VPA. Alternatively, if the Minister is not willing to enter into a VPA than Council place a covenant on the title of the Land which provides that if the land is to be developed, the developer must provide at least 90 public car spaces, affordable housing within the development and any other public benefits necessary to address the impacts of the development.

Background

6. A detailed background to the Planning Proposal was provided to the Council Meeting of 5 June 2017 in report CCL085-17.

7. Council resolved at the 5 June 2017 in relation to the Planning Proposal:

(a) That the Planning Proposal PP2015/0006 to amend Hurstville Local Environmental Plan 2012 as follows, in respect of the land known as 37-41 Treacy Street, Hurstville (Treacy Street Car Park site), be forwarded to the delegate of the Greater Sydney Commission for a Gateway Determination under Section 56 of the Environmental Planning and Assessment Act 1979:

i) Amend the Land Application Map to remove the “deferred matter” status from the site.

ii) Amend the Land Zoning Map to remove the “deferred matter” from the Site and zone the Site B4 Mixed Use.

iii) Amend the Height of Building Map (HOB) to specify a maximum building height of 55m.

iv) Amend the Floor Space Ratio Map (FSR) to specify a maximum floor space ratio of 7:1.

v) Amend the Active Street Frontages Map (ASF) to identify an active street frontage along the Treacy Street boundary of the site.

vi) Amend Clause 4.4A of Hurstville LEP 2012 to include a provision requiring a minimum ‘non-residential’ floor space ratio of 1:1 on the site.

vii) Amend to include provision for affordable housing to be incorporated in any development on the site equivalent to not less than 5% of the gross floor area of the development.

viii) Amend to include provision for public car parking to be provided in any development on the site equivalent to not less than 90 car spaces.

(b) That if it is determined by the Greater Sydney Commission or its delegate under Section 56 of the Environmental Planning and Assessment Act 1979 that the Planning Proposal referred to in (a) should proceed, an amendment to the Hurstville Development Control Plan No 2 – Hurstville City Centre (Amendment No 6), in respect of the land known as 37-41 Treacy Street Hurstville (Treacy Street Car Park site), be prepared and publicly exhibited at the same time that the Planning Proposal is publicly exhibited:

i) To include the site in the land to which the development control plan applies;

ii) To include site specific provisions including (but not limited to):

· Vehicle access points,

· Site and boundary landscaping,

· Active street frontages and building rear setbacks,

· Building breaks,

· Minimising overshadowing of the public domain.

(c) If it is determined by the Greater Sydney Commission or its delegate under Section 56 of the Environmental Planning and Assessment Act 1979 that the Planning Proposal referred to in part (a) should proceed

i) A revised urban design analysis be undertaken and be exhibited with the Planning Proposal that assesses the inter-relationship between the proposed height and floor space ratio as well as compliance with the Apartment Design Guide and avoids units with sole orientation to the railway line.

ii) Consideration be given to the traffic impacts generated by the development of the site in accordance with the Planning Proposal and the contributions that can be made to offset that impact.

iii) Noting Council will develop a Car Parking Strategy for Hurstville consideration be given to including additional parking spaces within the development to assist in improving parking availability within the centre.

8. In summary, the Gateway Determination (refer Attachment 1) determined that an amendment to the Hurstville LEP 210 to zone the site B4 Mixed Use and amend the building height, floor spacer ratio and active street frontage controls should proceed subject to conditions (refer below) and as follows:

· Amend the Land Application Map to remove the “deferred matter” status from the site.

· Amend the Land Zoning Map to remove the “deferred matter” from the Site and zone the Site B4 Mixed Use.

· Amend the Height of Building Map (HOB) to specify a maximum building height of 55m.

· Amend the Floor Space Ratio Map (FSR) to specify a maximum floor space ratio of 7:1.

· Amend the Active Street Frontages Map (ASF) to identify an active street frontage along the Treacy Street boundary of the site.

· Amend Clause 4.4A of Hurstville LEP 2012 to include a provision requiring a minimum ‘non-residential’ floor space ratio of 1:1 on the site.

9. The Gateway Determination also conditioned that prior to community consultation; the planning proposal is to be updated to:

· Remove reference to a provision for affordable housing. It is noted that the Council resolution (5 June 2017) in relation to the proposed Hurstville LEP 2012 amendment stated “amend to include provision for affordable housing to be incorporated in any development on the site equivalent to not less than 5% of the gross floor area of the development”.

· Remove reference to a provision for public car parking. It is noted that the Council resolution (5 June 2017) in relation to the proposed Hurstville LEP 2012 amendment stated “amend to include provision for public car parking to be provided in any development on the site equivalent to not less than 90 car spaces”.

· Include a revised Urban Design report illustrating the proposed built form taking into consideration the requirement for a minimum non-residential floor space of 1:1. The report is to be placed on public exhibition with the planning proposal and the planning proposal is to be updated to reflect the revised Urban Design report.

The Next Steps in the Planning Proposal Process

10. The Applicant (Council’s Property Section) has been advised of the requirements of the Gateway Determination and is preparing a revised Urban Design report.

11. The Planning Proposal (revised in accordance with the Gateway Determination) and supporting documents, including the revised Urban Design report, will be placed on community consultation in accordance it the Environmental Planning and Assessment Act, 1979 and Environmental Planning and Assessment Regulation 2000 for a minimum of 28 days. It is intended that the Planning Proposal be exhibited together with a draft Voluntary Planning Agreement as discussed below.

12. After the close of the community consultation a report to Council will be prepared to consider the comments received and recommendations for finalising the Planning Proposal and Voluntary Planning Agreement.

13. An amendment to the Hurstville DCP (No.2) Hurstville City Centre in relation to the Treacy Street Car Park site is also being prepared.

14. In relation to the consideration of the traffic impacts generated by the future development of the site, and contributions that can be made to offset that impact, Council is currently updating the Hurstville TMAP which will take into account future development within the site in line with the proposed increase in development standards (estimated to be approx. 180 residential apartments, 780m²ground floor retail, 1800m² commercial (office) floor space and approx. 375 basement parking spaces (including 90 public spaces).

Public Carpark and Affordable Housing

Public carpark

15. It should also be noted that Council’s Property Section/Division provided a Letter of Offer to enter into a Planning Agreement with Council as both parties dated 27 April 2017 in relation to the Planning Proposal. The letter of offer proposed to provide the following public benefits in relation to Planning Proposal on the site:

a. Public car parking to be dedicated to Council (GRC) in stratum with the redevelopment of the site up to or greater than current number of spaces on the site; and or

b. Monetary contributions to be used by Council (GRC) towards public purposes as described under Section 93F(2) of the EPA Act from sale of land resulting from uplift via the LEP amendment – as per VPA policy equation.

16. Council received advice from Henry Davis York (Law Firm) that as Council is the owner of the site, a Voluntary Planning Agreement (VPA) with Council as both parties was under Section 93F of the Environmental Planning and Assessment Act 1979 is not the appropriate means to enable Council to ‘lock in’ the public benefits proposed to the land. However, Henry Davis York (Law Firm) have provided updated advice that Council may enter into a VPA with the Minister for Planning as the other party, to enable Council to ‘lock in’ the public benefits proposed to the land.

17. IHAP at its Meeting of 18 May 2017 recommended that a provision for public car parking to be provided in any development on the site equivalent to not than 90 car spaces to replace the car parking currently provided on the site.

18. In light of the strategies underway and the review of the Hurstville TMAP, it was suggested by Council Officers in the report to the Council Meeting held 5 June 2017 that a local provision requiring carparking to be provided on this site not be included in the planning proposal and that the following approach is followed:

a. The Car Parking Strategy identifies the location, implementation mechanisms and time frame for the provision of not less than 90 car parking spaces (lost from the site) within the Hurstville City Centre.

b. If no alternate suitable location and delivery for the parking can be found within the Centre, then a minimum of 90 spaces are to be provided on the Treacy Street site. The requirement for the parking would be linked to the sale/development of the site.

19. Council at its Meeting held 5 June 2017 supported this approach.

20. However the Gateway Determination removes the carparking provisions because a site specific clause relating to carparking is inconsistent with the Standard LEP Instrument and the Section 117 Directions.

Affordable Housing

21. IHAP at its Meeting of 18 May 2017 recommended that a provision for affordable housing be incorporated in any development on the site equivalent to not than 5% of the gross floor area of the development. The 5% affordable housing requirement is based on the Affordable Rental Housing Target of 5% to 10% in the draft South District Plan for new urban renewal areas.

22. Council at its Meeting held on 5 June 2017 resolved to include a provision for affordable housing to be incorporated in any development on the site equivalent to not less than 5% of the gross floor area of the development.

23. In relation to the provision of affordable housing; the Department of Planning has advised that this requirement cannot be included in an amendment to the Hurstville LEP 2012 as an amendment to clause 9 of the State Environmental Planning Policy No.70 – Affordable Housing would be required prior to any planning proposal introducing affordable housing in an LEP. A request for an amendment to SEPP No.70 would require Council to prepare a local housing strategy in line with the Actions of the draft South District Plan. It is Council’s intention to provide an affordable housing component within any future residential development on the site, and in accordance with the recommendations of the local housing strategy. This affordable housing component is anticipated to be in the order of 3-5% of the total floor area of the development that is intended to be used for residential purposes.

Legal Advice Received

24. Council has received advice from Henry Davis York (Law Firm) that as Council is the owner of the site, a Voluntary Planning Agreement (VPA) under Section 93F of the Environmental Planning and Assessment Act 1979, with Council as both parties, is not the appropriate means to enable Council to ‘lock in’ the public benefits proposed to the land.

25. However, Council have since received updated advice from Henry Davis York which confirms that Council can enter into a VPA with the Minister for Planning, to provide for the 90 car parking spaces and 5% affordable housing on the site, in connection with the Planning Proposal.

26. That advice confirms that if Council wishes to "lock in" the obligation to provide the 90 car spaces and 5% affordable housing at the site now, as opposed to locking these in as part of a sale of land contract at a later date, then the provision of a draft VPA to the Minister, together with irrevocable offer to enter into that VPA post-exhibition, is an appropriate way to do so.

Voluntary Planning Agreement

27. On 24 August 2017, Council contacted the Department of Planning and Environment to enquire whether the Minister for Planning will agree to enter into a VPA in respect of the Planning Proposal. Council still awaits that confirmation.

28. Henry Davis York has provided Council advice on a proposed VPA between Council and the Minister for Planning, which recommends:

(a) that at least 90 public car parking spaces must be constructed at the site as part of any future development;

(b) affordable housing units comprising at least 5% of gross floor area of any future development must be constructed and fitted out;

(c) the car parking spaces and affordable housing units must be dedicated to Council, or if Council is still the landowner, Council must reserve them for public purposes;

(d) Council cannot sell or transfer the Land without the Minister's approval, but if Council does sell the land, the incoming party must enter into a VPA with the Council on similar terms, including provision of the Development Contributions;

(e) the VPA is to be registered on title, meaning it binds all future owners of the site.

29. Council is to note that this VPA will be prepared taking into account the provisions of the Georges River Council Policy on Planning Agreements.

30. Provided that the Department of Planning confirms that the Minister is willing to agree to enter into a VPA, it is recommended that Council publicly exhibit the VPA together with the Planning Proposal, and that Council forward the VPA to the Minister with an irrevocable offer to enter into the VPA, meaning that the requirements of the VPA will be "locked in".

31. Alternatively, if the Department of Planning and Environment indicates that the Minister for Planning is not willing to enter into a Voluntary Planning Agreement in respect of the Planning Proposal, it is recommended that Council approve the placing of a covenant on title of the land which provides that if the Treacy Street Car Park Land is developed, the developer must provide to Council at least 90 public car parking spaces, must develop and the transfer to Council at least 5% of the Gross Floor Area intended for residential purposes of any development for the purpose of affordable rental housing, and any other public benefits necessary to address the impacts of the development. Following this it is recommended that Council publicly exhibit both the Planning Proposal and the proposed covenant and delegate to the General Manager the authority to do all things necessary to place the covenant on title of the Treacy Street Car Park Land as soon as practicable after the Planning Proposal has been made.

Financial Implications

32. Requirement to provide car parking spaces and affordable housing units under the VPA as part of any future development.

33. No other budget impact for this report.

File Reference

PP2015/0006

ATTACHMENTS

Attachment View1

Gateway Determination Planning Proposal 37-41 Treacy Street, Hurstville Treacy Street Car Park

Month	Applications Received	Applications Determined	Outstanding Applications	Apps – with Council over 40 days <= 100 days	Apps – with Council over 100 days
May	86	96	348	107	130
June	102	78	372	106	145
July	114	104	366	118	124
August	104	105	359	125	110
Sept	95	62	382	138	123

Attachment View1	DA Reporting Jul - Aug - Sep
Attachment View2	Major DAs - October 2017