AGENDA - LPP

Meeting:

Georges River Local Planning Panel (LPP)

Date:

Thursday, 15 October 2020

Time:

4.00pm

Venue:

Council Chambers, Civic Centre, Hurstville

Panel Members:

Paul Vergotis (Chairperson)

Helen Deegan (Expert Panel Member)

John Brockhoff (Expert Panel Member)

George Vardas (Community Representative)

 

  

1. On Site Inspections - 1.00pm – 3.30pm

a)    70-78 Regent Street Kogarah

b)    27-33 Nielsen Avenue Carlton

c)    117 Stuart Street Blakehurst

d)    14A Merriman Street Kyle Bay

e)    2 Laycock Road Penshurst

f)     14 Maple Street Lugarno

 

 

 

 

Break - 3.30pm

 

2. Public Meeting – Consideration of Items 4.00pm 6.00pm

 

Public Meeting Session Closed - 6.00pm

(Break – Light Supper served to Panel Members)

 


Georges River Council – Local Planning Panel   Thursday, 15 October 2020

Page 2

 

 

3. Reports and LPP Deliberations in Closed Session - 6.30pm

 

LPP049-20        117 Stuart Street Blakehurst – DA2020/0247

(Report by Senior Development Assessment Planner)

LPP050-20        14 Maple Street Lugarno – DA2019/0645

(Report by Development Assessment Planner)

LPP051-20        27-33 Nielson Avenue Carlton – MOD2020/0084

(Report by Senior Development Assessment Officer)

LPP052-20        14A Merriman Street Kyle Bay – DA2020/0098

(Report by Senior Development Assessment Planner)

LPP053-20        2 Laycock Road Penshurst – DA2020/0607

(Report by Senior Development Assessment Officer)

LPP054-20        70-78 Regent Street Kogarah – MOD2020/0144

(Report by Development Assessment Planner)

 

 

 

 

4. Confirmation of Minutes

 


 

REPORT TO GEORGES RIVER COUNCIL

LPP MEETING OF Thursday, 15 October 2020

 

LPP Report No

LPP049-20

Development Application No

DA2020/0247

Site Address & Ward Locality

117 Stuart Street Blakehurst

Blakehurst Ward

Proposed Development

Demolition, tree removal, construction of a multi level dwelling house, in-ground swimming pool, front fencing, landscaping and site works

Owners

Gemaveld Pty Ltd

Applicant

MKD Architects

Planner/Architect

Planner: BMA Urban; Architect: MKD Architects

Date Of Lodgement

19/06/2020

Submissions

One submission

Cost of Works

$4,362,857

Local Planning Panel Criteria

The proposal seeks a variation to the maximum FSR development standard that is greater than 10%.

List of all relevant s.4.15 matters (formerly s79C(1)(a))

State Environmental Planning Policy No 55 - Remediation Of Land; State Environmental Planning Policy (Infrastructure) 2007; State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004; State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017; Greater Metropolitan Regional Environmental Plan No 2 – Georges River Catchment; 

State Environmental Planning Policy (Coastal Management) 2018; Draft Environment State Environmental Planning Policy; Draft Remediation of Land State Environmental Planning Policy;

Kogarah Local Environmental Plan 2012; Draft Georges River Local Environmental Plan 2020; Kogarah Development Control Plan 2013

List all documents submitted with this report for the Panel’s consideration

Architectural Plans, Massing Diagrams, Landscape Plan, Arborist Report, Statement of Environmental Effects, Clause 4.6 Variation Request, Geotechnical Report

 

 

 

Report prepared by

Senior Development Assessment Planner

 

 

Recommendation

That the application be refused in accordance with the reasons in this report.

 

Summary of matters for consideration under Section 4.15

Have all recommendations in relation to relevant s4.15 matters been summarised in the Executive Summary of the assessment report?

 

Yes 

Legislative clauses requiring consent authority satisfaction

Have relevant clauses in all applicable environmental planning instruments where the consent authority must be satisfied about a particular matter been listed and relevant recommendations summarised, in the Executive Summary of the assessment report?

 

Yes

Clause 4.6 Exceptions to development standards

If a written request for a contravention to a development standard (clause 4.6 of the LEP) has been received, has it been attached to the assessment report?

 

Yes  - Clause 4.4A – Exceptions to floor space ratio for residential accommodation in Zone R2

Special Infrastructure Contributions

Does the DA require Special Infrastructure Contributions conditions (under s7.24)?

 

Not Applicable

Conditions

Have draft conditions been provided to the applicant for comment?

 

No – the application is recommended for refusal

 

Site Plan

Subject site outlined in blue

 

Executive Summary

Proposal

1.         Development consent is sought for demolition works, tree removal, and construction of a multi-level dwelling house, swimming pool, front fence, landscaping and site works.

 

2.         Three trees are located in the front setback of the property, two Eucalyptus and one Angophora. The arborist report submitted with the application rates these trees as Category A: Important trees suitable for retention for more than 10 years and worthy of being a material constraint.

 

All three trees are proposed for removal to accommodate the proposed driveway. Council’s consulting arborist does not support their removal.

 

3.         The proposal fails to provide an adequate Clause 4.6 statement to support the necessity for the variation of the Kogarah Local Environmental Plan 2012 (KLEP) Floor Space Ratio (FSR) development standard. The proposal seeks to vary the applicable FSR of 0.28 (570.4sqm) seeking an FSR of 0.4:1 (825.3sqm) being a variation of 45%.

 

4.         The application is recommended for refusal.

 

Site and Locality

5.         The site is identified as Lot B in DP33563, known as 117 Stuart Street, Blakehurst.

 

6.         The lot is a waterfront property and has a site area of 2,029sqm and a 15.24m frontage to Stuart Street. The local topography surrounding the site falls to the west toward the Georges River. The site has a change in levels from the street to the water of 35m.

 

7.         Currently on the site is a two storey dwelling house with driveway access from Stuart Street. There is an excavated hardstand area with large retaining walls in the front setback, below street level.

 

8.         A swimming pool is located in the rear yard and there are slip rails and a boat shed located adjacent to the bay. Access to the water from the existing dwelling is via a series of stairs and pathways.

 

9.         The site contains a number of trees, both at the street frontage and on the land between the dwelling and the foreshore. The three trees located on the front setback are Category A trees and worthy of retention.

 

Zoning and Permissibility

10.      The site is zoned R2 - Low Density Residential under the provisions of Kogarah Local Environmental Plan 2012

 

Background

11.      The Application was lodged on 19 June 2020. The Applicant was advised on 9 July 2020 that the proposed FSR variation of 45% would not be supported and it was suggested the application be withdrawn. The Applicant advised on 10 July 2020 that they would not be withdrawing the application.

 

Reason for Referral to the Local Planning Panel

12.      This application is referred to the Georges River Local Planning Panel for determination as the proposal seeks consent for a variation of greater than 10% to the floor space ratio development standard of the Kogarah Local Environmental Plan 2012.

 

Submissions

13.      One submission was received at the close of the public notification period.

 

Conclusion

14.      Having regard to the matters for consideration under section 4.15(1) of the Environmental Planning and Assessment Act 1979 and following a detailed assessment, the proposed Development Application DA2020/0247 for demolition works, tree removal, and construction of a multi-level dwelling house, swimming pool, front fence, landscaping and site works is recommended for refusal for the reasons referenced at the end of this report.

 

Report in Full

PROPOSAL

15.      Council is in receipt of an application seeking development consent for demolition works, tree removal, and construction of a multi-level dwelling house, swimming pool, front fence, landscaping and site works.

 

16.      A detailed description of the proposal is as follows:

 

·      Demolition: the existing dwelling house, driveway, hardstand area, external staircases and swimming pool are to be demolished.

 

·      Tree removal: three trees are proposed for removal from the front setback to accommodate the proposed driveway.

 

·      Front Fence/Entry Feature: the proposal includes an access portico located on the front boundary and extending the width of the site frontage. The structure is of concrete construction and includes columns supporting a roof reaching a height of up to 3.1m.

 

·      Landscaping and earthworks: landscaping is proposed to the site boundaries, within the internal courtyards and the area at the rear of the proposed dwelling.

 

Significant earthworks are proposed to accommodate the lower levels of the proposed dwelling and to level the site to provide a flat lawn area at the rear of the dwelling. The site currently retains the natural topography of the land between the dwelling and the foreshore. The proposal involves excavation of up to 10m to accommodate the three lower levels of the dwelling, and cut and fill at the rear of the dwelling to create a flat landscaped private open space area ground level.

 

The plans are not dimensioned to enable a proper assessment of the depth of the proposed cut and fill in this area, and no detail is provided on the required retaining walls around the area.

 

·      Dwelling house: the proposed dwelling house is described by each level as follows:

 

o   Level 1: entry lobby, screened lounge area, office, meeting room, bathroom, kitchenette, terrace, lift and stair access to the level below. There is an internal courtyard at this level.

 

o   Ground Level: garage with parking for three vehicles, living, dining, bathroom, two bedrooms with robes and balconies, terrace, lift and stair access to other levels. There is a bamboo garden to this level.

 

o   Level 1: four bedrooms (each with robe and ensuite bathroom), master bedroom with terrace, walk in robe and ensuite bathroom, lounge area, lift and stair access to other levels.

 

o   Level 2: kitchen, living, dining, WC, wine cellar and pantry, terrace containing a kitchen, BBQ and pizza oven, access to the swimming pool and spa, stair and lift access to other levels, plus stair access to Level 3 terrace.

 

o   Level 3: movie room, laundry chute room, laundry, drying room, sauna, two WCs, shower room, rumpus room/gym/games room/study containing a bar and kitchenette, terrace with outdoor shower, storage and sinks, stair and lift access to other levels plus stair access to the rear yard.

 

17.      The proposed site plan is shown in Figure 1 and the proposed levelling and landscaping of the site and the rear yard is shown in Figures 2 and 3.

 

Figure 1: Proposed site plan

 

Figure 2: Proposed Landscape Plan

 

Figure 3: Proposed levelling and landscaping of rear yard

 

THE SITE AND LOCALITY

18.      The site is identified as Lot B in DP33563, known as 117 Stuart Street, Blakehurst.

 

19.      The lot is a waterfront property and has a site area of 2,029sqm and a 15.24m frontage to Stuart Street. The local topography surrounding the site falls to the west toward the Georges River. The site has a change in level from the street to the water of 35m.

 

20.      Currently on the site is a two storey dwelling house with driveway access from Stuart Street. There is an excavated hardstand area with large retaining walls in the front setback, below street level.

 

21.      A swimming pool is located in the rear yard and there are slip rails and a boat shed located adjacent to the bay. Access to the water from the existing dwelling is via a series of stairs and pathways.

 

22.      The site contains a number of trees, both at within the street frontage and on the land between the dwelling and the foreshore. The three trees located within the front setback are Category A trees and worthy of retention.

 

23.      Photos of the site are provided in the figures below.

 

Figure 4: View of the site from Stuart Street

 

Figure 5: Excavated hardstand area in the front setback

 

Figure 6: Pool on the subject site

 

24.      The site is located in a low density residential, waterfront area, characterised by multi-level dwelling houses, ancillary and waterfront structures, with a subdivision pattern containing battle axe allotments. The adjoining property to the north is known as 115 and 115A Stuart Street, a recently subdivided allotment containing a dwelling house on each lot (Figures 7 and 8).

 

25.      The property to the south is known as 123 Stuart Street and contains a dwelling house, swimming pool and tennis court (Figure 9).

 

Figure 7: Dwelling on 115A Stuart Street (green roof)

 

Figure 8: Rear of the dwelling on 115 Stuart Street

 

Figure 9: Development to the south of the subject site

 

Background

26.      The Application was lodged on 19 June 2020. The Applicant was advised on 9 July 2020 that the proposed FSR variation of 45% would not be supported and it was requested that the application be withdrawn. The Applicant advised on 10 July 2020 that they would not be withdrawing the application.

 

Compliance and Assessment

27.      The development has been assessed having regarding to Matters for Consideration under Section 4.15(1) of the Environmental Planning and Assessment Act 1979.

 

STATE ENVIRONMENTAL PLANNING INSTRUMENTS

28.      Compliance with the relevant State Environmental Planning Policies (SEPP) is detailed below.

 

STATE ENVIRONMENTAL PLANNING POLICY NO 55 – REMEDIATION OF LAND

29.      SEPP 55 aims to promote the remediation of contaminated land in order to reduce the risk of harm to human health or any other aspect of the environment. Clause 7 requires contamination and remediation to be considered in determining a development application. The consent authority must not consent to the carrying out of development on land unless it has considered whether or not the land is contaminated.

 

30.      A review of the site history indicates that the site has been used for residential purposes for extended periods of time, and such uses and/or development are not typically associated with activities that would result in the contamination of the site. The proposed works do not include any change to the use of the land that would result in any concerns with respect to contamination. There is no indication of previous uses that would cause contamination. In this regard there is no indication that the land is contaminated.

 

STATE ENVIRONMENTAL PLANNING POLICY (BUILDING SUSTAINABILITY INDEX: BASIX) 2004

31.      The trigger for BASIX Certification is when the estimated cost of works for residential development (new dwelling(s)/alterations and additions) is equal to or above $50,000. BASIX Certification is also triggered when proposing a swimming pool with a volume of 40,000 litres.

 

32.      A BASIX Certificate dated 29 May 2020, certificate number 1102034S, has been submitted with the Development Application satisfying the minimum requirements of SEPP (Building Sustainability Index: BASIX) 2004.

 

STATE ENVIRONMENTAL PLANNING POLICY (VEGETATION IN NON-RURAL AREAS) 2017

33.      The Vegetation SEPP regulates clearing of native vegetation on urban land and land zoned for environmental conservation/management that does not require development consent.

 

34.      The Vegetation SEPP applies to clearing of:

 

(a)   Native vegetation above the Biodiversity Offset Scheme (BOS) threshold where a proponent will require an approval from the Native Vegetation Panel established under the Local Land Services Amendment Act 2016; and 

(b)   Vegetation below the BOS threshold where a proponent will require a permit from Council if that vegetation is identified in the council’s development control plan (DCP). 

 

35.      The objectives of the SEPP are to protect the biodiversity values of trees and other vegetation in non-rural areas and preserve the amenity of non-rural areas through the preservation of trees and other vegetation. This policy is applicable pursuant to Clause 5(1) of the SEPP as the site is within both Georges River Council and the R2 Low Density Residential zone.

 

36.      Pursuant to Clause 8(1) of the SEPP, clearing does not require authority under the policy as it is a type of clearing that is authorised under Section 60O of the Local Land Services Act 2013 (specifically, that associated with a development consent issued under Part 4 of the Environmental Planning and Assessment Act 1979).

 

37.      As part of the proposal, three (3) trees have been nominated for removal.

 

38.      The application was referred to Council’s Consultant Arborist who provided the flowing comments:

 

“There are several large Eucalypts and an Angophora costata located within the sites front boundary. They all appear as possible mature remnant trees, all in good condition via a visual assessment. The Arborist Report for this DA assesses all three trees and rates the Eucalypts as of HIGH significance, whilst the Angophora is rated as a MEDIUM significance.

 

The arborist report mentions that the only reason for removal is due to the driveway affecting the TPZ and SRZ and the only reason for removal is to necessitate the driveway.

 

RECOMMENDATIONS:

I cannot support the removal of such significant mature trees that contribute to the general greening canopy of the local area. The trees are growing quite comfortably…a more favourable outcome would be to utilise the existing footprint and driveway. This way the impacts to existing trees will be minimised.”

 

39.      The proposal does not satisfy the objectives of the SEPP.

 

STATE ENVIRONMENTAL PLANNING POLICY (COASTAL MANAGEMENT) 2018

40.      The Coastal Management SEPP 2018 aims to: “Promote an integrated and co-ordinated approach to land use planning in the coastal zone in a manner consistent with the objects of the Coastal Management Act 2016 including the management objectives for each coastal management area”.

 

The subject site has not been identified as being located in a coastal vulnerability area and a coastal environmental area as per NSW State Environmental Planning Policy (Coastal Management) 2018 - Maps.

 

SEPP Control

Proposal

Complies

13. Development on land within the coastal environment area

(1) Development consent must not be granted to development on land that is within the coastal environment area unless the consent authority has considered whether the proposed development is likely to cause an adverse impact on the following:

(a)  the integrity and resilience of the biophysical, hydrological (surface and groundwater) and ecological environment,

Surface water runoff is to be managed in accordance with the stormwater management plan should the application be approved.

Yes

(b)  coastal environmental values and natural coastal processes,

 

The proposal is used for residential purposes and will unacceptably impact the coastal environmental values, as it will result in adverse visual impacts from the waterway. There is no anticipated impact on coastal processes.

No

(c)  the water quality of the marine estate (within the meaning of the Marine Estate Management Act 2014), in particular, the cumulative impacts of the proposed development on any of the sensitive coastal lakes identified in Schedule 1,

Appropriate standard conditions would be imposed if the application were to be approved to ensure water quality is maintained. The site is not located on any of the sensitive coastal lakes identified in Schedule 1.

 

Yes

(d)  marine vegetation, native vegetation and fauna and their habitats, undeveloped headlands and rock platforms,

Adverse impacts will arise from the proposed development in relation to vegetation and landform.

No

(e)  existing public open space and safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability,

The subject site and immediately adjoining sites are privately owned, with no public access to this part of the foreshore.

Yes

(f)   Aboriginal cultural heritage, practices and places,

 

The allotment is not known as a place of Aboriginal significance. There is no impact in terms of Aboriginal heritage.

Yes

(g)  the use of the surf zone.

 

The development is not located near the surf zone.

N/A

(2) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that:

(a) the development is designed, sited and will be managed to avoid an adverse impact referred to in subclause (1), or

The proposal is unsatisfactory in terms of impact as discussed throughout this report.

 

No

(b) if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact, or

The proposal is unsatisfactory and has not been designed to reduce impacts.

 

No

(c) if that impact cannot be minimised—the development will be managed to mitigate that impact

The proposal is unsatisfactory and has not been designed to minimise impacts.

 

No

14 Development on land within the coastal use area

(1) Development consent must not be granted to development on land that is within the coastal use area unless the consent authority:

(a) has considered whether the proposed development is likely to cause an adverse impact on the following:

(i) existing, safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability,

There is no public access in this location.

Yes

(ii) overshadowing, wind funnelling and the loss of views from public places to foreshores,

The proposal will not shadow the foreshore.

Yes

(iii) the visual amenity and scenic qualities of the coast, including coastal headlands,

The proposal is a cascading development form as well as excessive amounts of cut to accommodate the proposal. This development is inconsistent with the development forms immediately adjoining and along the bay, as it proposes a continuous built form with no relief by way of separation and landscaping visible from the bay.

No

(iv) Aboriginal cultural heritage, practices and places,

The property is not a known site of Aboriginal heritage.

Yes

(v) cultural and built environment heritage, and

The site does not contain or adjoin any heritage items.

Yes

(b) is satisfied that:

(i) the development is designed, sited and will be managed to avoid an adverse impact referred to in paragraph (a), or

The proposal is unsatisfactory in terms of impact as discussed throughout this report.

 

No

(ii) if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact, or

The development will result in unreasonable impacts.

 

No

(iii) if that impact cannot be minimised—the development will be managed to mitigate that impact, and

The development will result in unreasonable impacts.

 

No

(c) has taken into account the surrounding coastal and built environment, and the bulk, scale and size of the proposed development.

 

Development is unsatisfactory in terms of the built form controls in Kogarah LEP 2012 and DCP 2013.

 

The development form and scale is inconsistent with the built form immediately adjoining and that of the visual catchment.

No

 

GREATER METROPOLITAN REGIONAL ENVIRONMENTAL PLAN NO 2 — GEORGES RIVER CATCHMENT

41.      The main aims and objectives of this plan include but are not limited to the following:

 

·      To maintain and improve the water quality and river flows of the Georges River and its tributaries and ensure that development is managed in a manner that is in keeping with the national, State, regional and local significance of the Catchment,

 

·      To protect and enhance the environmental quality of the Catchment for the benefit of all users through the management and use of the resources in the Catchment in an ecologically sustainable manner,

 

·      To ensure consistency with local environmental plans and also in the delivery of the principles of ecologically sustainable development in the assessment of development within the Catchment where there is potential to impact adversely on groundwater and on the water quality and river flows within the Georges River or its tributaries,

 

·      To establish a consistent and coordinated approach to environmental planning and assessment for land along the Georges River and its tributaries and to promote integrated catchment management policies and programs in the planning and management of the Catchment,

 

42.      The proposed stormwater drainage system has been assessed by Council’s Development Engineer and has been found to be satisfactory and conditions of consent can be imposed should the application be approved.

 

DRAFT ENVIRONMENTAL PLANNING INSTRUMENTS

 

Draft Environmental SEPP

43.      The Draft Environment SEPP was exhibited from 31 October 2017 to 31 January 2018. This consolidated SEPP proposes to simplify the planning rules for a number of water catchments, waterways, urban bushland and Willandra Lakes World Heritage Property. Changes proposed include consolidating the following seven existing SEPPs:

 

·      State Environmental Planning Policy No. 19 – Bushland in Urban Areas;

·      State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011;

·      State Environmental Planning Policy No. 50 – Canal Estate Development;

·      Greater Metropolitan Regional Environmental Plan No. 2 – Georges River Catchment;

·      Sydney Regional Environmental Plan No. 20 – Hawkesbury-Nepean River (No.2-1997);

·      Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005;

·      Willandra Lakes Regional Environmental Plan No. 1 – World Heritage Property.

 

44.      The proposal is not inconsistent with the provisions of this Draft Instrument. Council’s engineers have provided conditions of consent should the application be approved.

 

Draft Remediation of Land SEPP

45.      The Draft Remediation of Land SEPP was exhibited from 31 January 2018 to 13 April 2018. The proposed remediation of land SEPP will:

 

·      Provide a state-wide planning framework for the remediation of land;

·      Maintain the objectives and reinforce those aspects of the existing framework that have worked well;

·      Require planning authorities to consider the potential for land to be contaminated when determining development applications and rezoning land;

·      Clearly list the remediation works that require development consent;

·      Introduce certification and operational requirements for remediation works that can be undertaken without development consent.

 

46.      The proposal is not inconsistent with the provisions of this Draft Instrument.

 

KOGARAH LOCAL ENVIRONMENTAL PLAN 2012

47.      The extent to which the proposed development complies with the Kogarah Local Environmental Plan 2012 (KLEP 2012) is detailed and discussed in the table below.

 

Figure 9: Land Zoning Map as per KLEP 2012 (subject site outlined in blue)

 

Clause

Standard

Proposed

Complies

Part 1 – Preliminary

1.2 – Aims of the Plan

In accordance with Clause 1.2 (2)

The development is not considered to be consistent with the aims of the plan.

No. Refer to discussion below.

Comments on Aims of the Plan:

The particular aims of the Kogarah Local Environmental Plan 2012 in relation to Clause 1.2 (2) are as listed below:

 

·      To guide the orderly and sustainable development of Kogarah,

·      To encourage a diversity of housing choice suited to meet the needs of the current and future residents of Kogarah,

·      To promote economic development and facilitate the continued growth of commercial, medical-related and industrial employment-generating opportunities,

·      To protect and enhance Kogarah’s natural environment, foreshores and waterways,

·      To provide high quality open space and a range of recreational areas and facilities suited to meet the needs of the residents of Kogarah and its visitors,

·      To conserve Kogarah’s environmental heritage.

 

The development is not considered to be consistent with the aims of the Kogarah Local Environmental Plan 2012, as the proposal has not been designed to satisfy the criteria relating to the orderly and sustainable development given the excessive density breach and resultant bulk and scale of the proposal. The proposal is not considered to be well suited to meet the needs of the current and future residents of the locality.

1.4 - Definitions

Dwelling House means:

a building containing only one dwelling.

The proposed development is inconsistent with the definition.

No. Refer to discussion below.

Comments on Definitions:

The proposal seeks consent for the construction of a dwelling house; however the Ground Level of the proposal is essentially a self-contained dwelling. It contains two bedrooms, storage, a bathroom, living and dining area, common area and a large water-facing terrace including a separate access from the pathway on the southern side of the property.

 

The architectural plans do not show a kitchen, however the landscape plan does show a kitchen, confirming the intention of the applicant to use this level as a separate domicile as shown on Sheet 105 B of the Landscape Plans submitted with the DA.

                                                                                                                                                          

Part 2 - Permitted or prohibited development

2.3 - Zone objectives and Land Use Table

Meets objectives of R2- Low Density Residential Zone.

 

 

Development must be permissible with consent

The proposal fails to meets all the objectives of the zone.

 

The proposal is permissible with development consent.

No. Refer to discussion below.

 

 

Yes

Comments on zone objectives:

The objectives of the R2 Low Density Residential Zone as identified in KLEP 2012 are as listed below:

 

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

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

 

The proposed development fails to satisfy all the R2 Low Density Residential zone objectives as:

 

i.     The development presents unreasonable visual bulk and scale compromising the amenity of the surrounding area.

 

ii.    The proposed development will result in significant built form, which is inconsistent with the surrounding waterfront built form. It is acknowledged there is a subdivision pattern of battle axe allotments in this locality. The battle axe arrangement results in 2 or three allotments off an access handle. Each allotment has a dwelling on it, resulting in massing of built form down the slope of the land. It is acknowledged that this massing has visual relief through the setbacks provided between each dwelling.

 

This application is seeking to cascade down the allotment, however results in considerable and unreasonable bulk as there is no relief of the built form given there is no break in the massing of the dwelling house and structures.

 

An adverse impact will result from the proposed development on the amenity of the locality and adjoining neighbours, this is not expected by a residential dwelling form in a low density residential area.

Part 4 - Principal Development Standards

4.3 – Height of Buildings

9m as identified on Height of Buildings Map

The proposal appears to have a maximum overall height of 9m, however no spot levels are provided on the plans to confirm the existing natural ground level.

Insufficient detail is provided to confirm compliance.

4.4 – Floor Space Ratio

0.6:1 as identified on Floor Space Ratio Map

Despite clause 4.4 (2), the floor space ratio for residential accommodation on land in Zone R2 Low Density Residential, Clause 4.4A applies.

Refer to Clause 4.4A

4.4A Exceptions to floor space ratio for residential accommodation in Zone R2

2) Despite clause 4.4 (2), the floor space ratio for residential accommodation on land in Zone R2 Low Density Residential is not to exceed the maximum floor space ratio specified in the table to this subclause.

 

For site area not less than 1,500sqm [(lot area − 1,500) × 0.1 + 517.5] ÷ lot area:1

 

Site area: 2,029sqm

 

0.28:1 or 570.4sqm

The proposed development has a total FSR of 825.3sqm or 0.4:1

 

254.9sqm exceedance or a 44.7% variation.

No. Refer to Clause 4.6 assessment.

4.6  – Exceptions to development standards

In accordance with Clause 4.6 (1) through to and including (8)

The proposal is accompanied by a Clause 4.6 variation statement relating to the breach of the Floor Space Ratio standard under Clause 4.4A.

Refer to Clause 4.6 assessment.

Part 5 – Miscellaneous Provisions

5.4 - Controls relating to miscellaneous permissible uses

 

(2) Home businesses

If development for the purposes of a home business is permitted under this Plan, the carrying on of the business must not involve the use of more than 30 square metres of floor area.

Home businesses are permitted in the R2 zone.

Level 1 of the development proposes an office, meeting room, store/printer room, kitchenette and terrace equating to an area of 137sqm.

No. Refer to comments below.

Comments on home office:

The size of the home office exceeds the maximum 30sqm permitted by Clause 5.4 of the KLEP.

 

While not stated in the LEP, the underlying objective of the clause is to limit the size of the area able to be used as a home business so that it remains ancillary to the dwelling and not of a size that may result in other impacts such as staff and visitor parking etc.

 

The size of the office and meeting room can accommodate a number of staff and visitors and unnecessarily adds to the floor space of the development as a whole.

 

The home office is not supported in its current form.

5.7 – Development below mean high water mark

(2) Development consent is required to carry out development on any land below the mean high water mark of any body of water subject to tidal influence (including the bed of any such water).

The proposal does not involve works below the Mean High Water Mark.

Yes

5.10 – Heritage conservation

In accordance with Clause 5.10 (2)

The site is not a heritage item and not located within the vicinity of any heritage items.

Site is not in a heritage conservation area.

Yes

Part 6 - Additional Local Provisions

6.1 – Acid sulfate soils

(2) Development consent is required for the carrying out of works described in the Table to this subclause on land shown on the Acid Sulfate Soils Map as being of the class specified for those works.

 

The site is not mapped as being affected by acid sulfate soils.

N/A

6.2 Earthworks

(2) Development consent is required for earthworks unless—

(a) the earthworks are exempt development under this Plan or another applicable environmental planning instrument, or

 

(b) the earthworks are ancillary to development that is permitted without consent under this Plan or to development for which development consent has been given.

The proposed earthworks are excessive and are unacceptable for this form of development.

See comments below.

No, refer to comments below.

Comments on earthworks:

The proposed earthworks extend up to 10m below natural ground level to accommodate the lift shaft and parts of the Ground Level, -1 Level, -2 Level and -3 Level. This extent of excavation is excessive and is not supported. It fails to meet the objective of the KLEP 2012 that seeks to protect and enhance Kogarah’s natural environment, foreshores and waterways. Removal of the site features that provide the topography is considered to be unacceptable from a visual perspective and the impact this cut has upon adjoining allotments and the waterway.

 

Earthworks are also proposed at the rear of the dwelling to create a flat landscaped private open space area at ground level. The plans are not dimensioned to enable a proper assessment of the depth of the proposed cut and fill in this area, and no detail is provided on the required retaining walls around this area.

 

The Geotechnical Report submitted with the DA concludes (our emphasis added in bold):

 

“5.1 SITE STABILITY

Based on the preliminary geotechnical assessment carried out by Fortify Geotech, including a site walk-over inspection, it appears that the site is not suitable for the proposed development from a slope stability perspective due to the quantity of unstable boulders present to the west of the existing property. The boulders present an unacceptable risk to people and property particularly following large rainfall events. Remediation to mitigate instability risks include removing the unstable boulders and levelling the site. Alternatively, the unstable boulders could be anchored using rock bolts where possible.

 

Additionally, the good hillside practice guidelines must be followed for the proposed development. Given the proposed 6m/9m excavation depths, a detailed, intrusive geotechnical report is recommended for construction of the proposed development.”

 

The levelled area proposed at the rear of the dwelling is not supported as it results in unnecessary alteration to the natural topography of the site.

 

No details have been provided with the application on the required retaining walls to contain the proposed fill in the levelled area. The proposal has failed to provide details on the quantity, number and location of required rock bolts. From the commentary provided above this may necessitate work on adjoining allotments, which is not addressed as part of this application.

 

The excessive excavation to accommodate multiple levels of the dwelling, which is more than double the allowable FSR for the land, and the proposed solution to offset the site instability as a result by levelling a large area of the site is not supported and forms a reason for refusal.

6.4  Limited development on foreshore area

In accordance with Clause (2) and (3)

No works are proposed below the foreshore building line.

Yes

 

Figure 10: The foreshore building line is referenced by the pink shaded area.       

           

Clause 4.6 Variation Assessment

Clause 4.4A Exceptions to floor space ratio for residential accommodation in Zone R2

48.      The proposed development seeks a total Floor Space Ratio (FSR) of 0.4:1, being 825.3qm, whilst Clause 4.4A of KLEP 2012 restricts the FSR to 0.281, being 570.4sqm, resulting in a non-compliance of 254.9sqm being a 45% variation of the control.  The Applicant has submitted a Clause 4.6 statement to vary the permissible FSR and this is addressed below.

 

49.      Any assessment of the intent and objective of the development standard must have regard to the definitions for Gross Floor Area and Floor Space Ratio and their wording to ascertain what form of building is proposed see below:

 

gross floor area means the sum of the floor area of each floor of a building measured from the internal face of external walls, or from the internal face of walls separating the building from any other building, measured at a height of 1.4 metres above the floor, and includes:

(a)   the area of a mezzanine, and

(b)   habitable rooms in a basement or an attic, and

(c)   any shop, auditorium, cinema, and the like, in a basement or attic, but excludes:

(d)   any area for common vertical circulation, such as lifts and stairs, and

(e)   any basement:

(i)    storage, and

(ii)   vehicular access, loading areas, garbage and services, and

(f)    plant rooms, lift towers and other areas used exclusively for mechanical services or ducting, and

(g)   car parking to meet any requirements of the consent authority (including access to that car parking), and

(h)   any space used for the loading or unloading of goods (including access to it), and

(i)    terraces and balconies with outer walls less than 1.4 metres high, and

(j)    voids above a floor at the level of a storey or storey above.

 

And

 

The floor space ratio of buildings on a site is the ratio of the gross floor area of all buildings within the site to the site area.

    

50.      The submitted architectural plans in conjunction with the Statement of Environmental Effects and Clause 4.6 variation request prepared by BMA Urban seeks a variation of 45% to the maximum allowable FSR control.

 

51.      The applicant has provided gross floor area calculations excluding the garage.

 

52.      No elevation has been provided in the architectural plans showing the treatment of the western edge of the garage i.e. no wall or balustrade is shown. It is also of relevance to note that the following statement was included the Statement of Environmental Effects submitted with the DA (refer to figure 11):

 

Figure 11: Extract from SEE (page 12)

 

53.      With reference to the definition of gross floor area:

 

(g)   car parking to meet any requirements of the consent authority (including access to that car parking),

 

54.      As per Kogarah DCP 2013 Chapter B4 - Parking and Traffic, dwelling houses are required to provide two (2) car spaces. The entire parking area has been excluded from the GFA by the applicant. Council’s assessment of the proposed parking area is that it is sufficiently enclosed to meet the definition of GFA and is required to be included in GFA calculation. This results in the third parking space, being an area of 16.5sqm, added to the GFA, bringing the total to 841.8sqm (0.41:1).

 

55.      An assessment of the applicant’s 4.6 variation request is provided below.

 

Exception to Development Standards

Detailed assessment of variation to Clause 4.4A Exceptions to floor space ratio for residential accommodation in Zone R2

56.      The objectives of Clause 4.6 are as follows

(a) to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b)   to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

 

57.      The proposed development seeks a variation of the development standard relating to FSR (Clause 4.4A). The Kogarah Local Environmental Plan 2012 (KLEP) identifies a maximum FSR of 0.28:1 or 570.4sqm for the Site and the proposed development has an FSR of 841.8sqm or 0.41:1 (825.3sqm or 0.4:1 as calculated by the applicant). This breach amounts to a 45% variation of the control.

 

58.      Any variation to a statutory control can only be considered under Clause 4.6 – Exceptions to Development Standards of the KLEP.

 

59.      Clause 4.6(3) states that:

“Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

-      that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

-      that there are sufficient environmental planning grounds to justify contravening the development standard”

 

60.      To support the non-compliance, the applicant has provided a request for a variation to Clause 4.4A in accordance with Clause 4.6 of KLEP. The Clause 4.6 request for variation is assessed as follows:

 

Is the planning control in question a development standard?

61.      The floor space ratio control under Clause 4.4A of the KLEP 2012 is a development standard. The maximum permissible FSR is 0.28:1 or 570.4sqm.

 

What are the underlying objectives of the development standard?

62.      The objectives of Floor space ratio standard under Clause 4.4A of KLEP 2012 are:

 

(a)  to ensure that the bulk and scale of development are compatible with the size of the lot, and

(b)  to promote good residential amenity.

 

Compliance is unreasonable or unnecessary in the circumstances of the case (clause 4.6(3)(a))

63.      There have been several Court cases that have established provisions to assist in the assessment of Clause 4.6 statements to ensure they are well founded and address the provisions of Clause 4.6. In Wehbe V Pittwater Council (2007) NSW LEC 827 Preston CJ set out ways of establishing that compliance with a development standard is unreasonable or unnecessary.

 

64.      Preston CJ in the judgement then expressed the view that there are 5 different ways in which an objection may be well founded and that approval of the objection may be consistent with the aims of the policy, as follows (with emphasis placed on number 1 for the purposes of this Clause 4.6 variation:

 

1.    The objectives of the standard are achieved notwithstanding non-compliance with the standard;

2.    The underlying objective or purpose of the standard is not relevant to the development and therefore compliance is unnecessary;

3.    The underlying object or purpose would be defeated or thwarted if compliance was required and therefore compliance is unreasonable;

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

5.    The zoning of the particular land is unreasonable or inappropriate so that a development standard appropriate for that zoning is also unreasonable and unnecessary as it applies to the land and compliance with the standard that would be unreasonable or unnecessary. That is, the particular parcel of land should not have been included in the particular zone.

 

65.      The Clause 4.6 Statement was prepared in consideration of the recent court cases and their judgements.

 

66.      Applicants comment: “The objectives of the development standard are achieved notwithstanding the noncompliance (First Method).

 

The objectives of the Floor Space Ratio standard in cl. 4.4 of KLEP 2012 are as follows:

·      to ensure the intensity of development is compatible with the desired future character and zone objectives of the land

 

67.      The underlying purpose of this objective is to ensure that any future development is designed in a manner whereby any resulting land use intensity will appropriately respond to both the zone objectives and existing and future context in a controlled manner. Reference is made to the potential for subdivision analysis prepared by MKD Architects and identified as DA-9.01 (May 20) within the architectural plan set. This analysis demonstrates the ability for land subdivision which while not being sought in this case, would govern a land use intensity envisaged to result if this development path was considered. More specifically, this analysis provides a preliminary subdivision and lot layout plan inclusive of an FSR summary demonstrating a total potential GFA for the land if the subdivision path was pursued. In summary, the anticipated total GFA that would be made available to the land upon land subdivision and the subsequent construction of a detached dwelling on each lot would be 828.6m2 or 0.408:1. The extent of GFA offered in this scenario is on balance, no different to that being proposed by the subject development; however, this development proposes to consolidate the allowable GFA in a singular built form.

 

68.      Further to the above, the defining context presents an array of built forms and subdivision patterns designed in either a single lot, dual battle-axe lot or multi lots serviced by reciprocal rights of way extending from Stuart Street down towards the foreshore along the Georges River. The resulting built form notwithstanding the FSR breach is visually less defined than that of that predominately observed within the context noting the established land use intensities and desired future character which seeks to control the magnitude of development on any given parcel of land.

 

69.      Furthermore, the proposed FSR breach will in no way hinder the development ability to remain consistent with the zoning objections which primarily call for the provision of housing within a low density residential environment.

 

·      To limit the bulk and scale of development

 

70.      The proposal has been designed in response to the natural characteristics of the land where it will maintain an appropriate relationship with both neighbouring development and critical land interfaces. The building elevations incorporate a significant degree of physical articulation and modulation in the form of slots or breaks in the building, recessed and projecting balconies and architectural features and privacy screens. These features and design elements complement the aforementioned massing arrangement and contribute to visual interest, particularly when viewed from the Georges River foreshore.

 

71.      The design of the development creates a singular built form with a clear architectural dialectic designed in response to the natural characteristics of the land. The staggered and appropriately modulated floor level geometry enables each level to distinctly coordinate with each preceding or succeeding level and in turn, offers an appropriate level of visually contrast. This design outcome mitigates the extent of appreciable mass which most importantly, will appear subordinate to the extent of built form currently identified from along the foreshore.

 

72.      Importantly, the proposed arrangement of building mass means that the extent of visual scale offered most notably by the FSR breach, will have no adverse bearing in terms of the aesthetic characteristics and setting of the building. In this regard, the form and massing of the development will remain congruent with that as currently presented by established development within its defining context.

 

The objectives of Floor Space Ratio standard in cl. 4.4A of KLEP 2012 are as follows:

·      To ensure that the bulk and scale of development are compatible with the size of the lot.

 

73.      As discussed in address of the objective above, the resulting bulk and scale of this development is consistent with that envisaged for a parcel of land of this size. Importantly, the potential subdivision of the subject land and subsequent construction of two (2) detached dwellings on the site in lieu of the single dwelling as proposed would yield an FSR not inconsistent with that sought in this case.

 

·      To promote good residential amenity

 

74.      The proposed development has been designed in a manner where reciprocal privacy benefits will continue to be enjoyed, while solar access to both the subject and neighbouring dwellings will be maintained at acceptable levels. Furthermore, the resulting built form which is limited to a single yet appropriately staggered arrangement, would offer a reduction in the extent of appreciable building mass across the extent of the land over what would be anticipated by the subdivision of the subject site into two (2) allotments and the subsequent construction of a multi-level dwelling on each of the created lots.”

 

Clause 4.6(3)(b) are there sufficient environmental planning grounds to justify contravening the standard

75.      Applicants Comment: Clause 4.6(3)(b) of the KLEP 2012, requires the consent authority to be satisfied that the applicant’s written request has adequately addressed clause 4.6(3)(b), by demonstrating:

 

“That there are sufficient environmental planning grounds to justify contravening the development standard”.

 

76.      The environmental planning grounds relied on in the written request under Clause 4.6 must be sufficient to justify contravening the development standard. The focus is on the aspect of the development that contravenes the development standard, not the development as a whole. Therefore, the environmental planning grounds advanced in the written request must justify the contravention of the development standard and not simply promote the benefits of carrying out the development as summarised in (Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118).

 

77.      The proposed development is supportable on environmental planning grounds for the following reasons:

 

·      The proposal (notwithstanding the LEP contravention) is consistent with the objectives of the development standard as provided in clause 4.4A of the KLEP 2012;

·      The variation does not alter the intended purpose for a “dwelling house” in the Zone;

·      The additional development density afforded by the breach is suitably arranged and will not result in any adverse impacts on neighbouring land or potential future development thereon;

·      Any adverse environmental impacts of the proposed development are not materially different from that of a floor space ratio that would be achieved by the subdivision of the land into two (2) lots and the construction of a new dwelling on the created lots. Therefore, there is no environmental benefit to reducing building volume. The design of the development creates a singular built form with a clear architectural dialectic designed in response to the natural characteristics of the land. The staggered and appropriately modulated floor level geometry enables each level to distinctly coordinate with each preceding or succeeding level and in turn, offers an appropriate level of visually contrast. This design outcome mitigates the extent of appreciable building mass which most importantly, will appear subordinate to that currently identified along the foreshore setting.

·      The development’s characteristics ensure that there is no potential for this development to have a jarring effect on either the street or waterscape, given the appropriately sited massing arrangement proposed as part of the development, and the evolving area context.

 

78.      The Objects of the Act under S1.3 are also relevant to whether grounds exist to warrant a variation. While this does not necessarily require that the proposed development should be consistent with the objects of the Act, nevertheless, in the table below we consider whether the proposed development is consistent with each object.

 

The objects of this Act and how this proposal responds to the object are as follows:

 

 

79.      Having regard to Clause 4.6(3)(b) and the need to demonstrate that there are sufficient environmental planning grounds to justify contravening the development standard, it is considered that there will be negative impacts of the proposed non-compliance on the environmental quality of the locality and amenity of adjoining properties in terms of overlooking, visual bulk and scale.

 

Clause 4.6(4)(a)(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out

80.      Clause 4.6(4) states that:

 

“Development consent must not be granted for development that contravenes a development standard unless:

 

(a)   the consent authority is satisfied that:

 

(i)      the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii)     the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out,”

 

81.      Applicants Comment: “Clause 4.6(4)(a)(ii) provides that development consent must not be granted for development that contravenes a development standard unless the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out.

 

82.      In Part 3 of this request, it was demonstrated that the proposal is consistent with the objectives of the development standard. The proposal, inclusive of the non-compliance, is also consistent with the objectives of the R2 Medium Density Zone as detailed below:

 

 

83.      The objectives of the zones as demonstrated above, as well as the objectives for the standard, have been adequately satisfied. Therefore, the proposal is considered to be in the public interest.”

 

 

84.      The objectives of the standard are as follows:

 

(a)  to ensure that the bulk and scale of development are compatible with the size of the lot, and

(b)  to promote good residential amenity.

 

85.      Officer Comment: The proposal seeks an FSR of 0.4:1 (825.3sqm) on an allotment of 2,029sqm whereas the planning controls define a floor space for development of this type residential accommodation in Zone R2 of 0.28:1 (570.4sqm).

 

86.      The proposal is 255sqm in excess of the standard. This is an excessive non-compliance with the FSR standard with a flawed justification provided for the additional floor space, and will impose amenity impact on the amenity of surrounding properties.

 

87.      The applicant states the proposal has been designed in response to natural characteristics of the land, and results in a bulk and scale envisaged for this type of the development on the land.

 

88.      The extent of excavation of up to 10m is clearly at odds with the natural topography of the site and the bulk and scale resulting from this breach creates an undesirable outcome for a single dwelling house by creating a potential precedent where excessive floor space can be proposed simply on the basis that it equates to the same numerical amount of floor space had the site been subdivided and two separate dwellings constructed.

 

89.      Additionally, the objective of the clause is to ensure that the bulk and scale of the development is compatible with the size of the lot, and to promote good residential amenity. The control achieves this by limiting the amount of floor area for residential accommodation as expressed. The proposal results in a large and bulky residence, which is at odds with the objective of this clause.

 

90.      In the development of this site it is considered that there are no unique or exceptional environmental circumstances that apply that justify a variation of the control to the extent sought.

 

91.      The Clause 4.6 variation relies on compliance with two of the five justifications expressed in the Land and Environment Court decision of Wehbe -v- Pittwater City Council (2007) which set down criteria to justify a variation under State Environmental Planning Policy No.1 (Development Standards) which has been replaced in Planning Instruments by the standard Clause 4.6. The principals espoused in the Appeal do however, remain relevant for consideration. 

 

92.      The Applicants reliance on the first justification that “the objectives of the development standard are achieved notwithstanding non-compliance with the standard” is not accepted as, although the works will not result in increased bulk and scale when viewed directly from Stuart Street it will present as a large and bulky building from adjoining sites and the adjacent waterway, being a larger building when viewed from other aspects.

 

93.      The proposal, if approved, would serve to promote a building form and site density that is contrary to the objectives of the controls.  This would undermine the intent and objectives of the controls and diminishing the amenity of adjoining properties.

 

94.      In respect to Prestons CJ judgement the NSW Land and Environment Court has established the five part test (outlined above). In this case the development fails to satisfy the five part test for the following reasons:

·      The objectives of the standard are not considered to be satisfied;

·      The underlying objective of the standard remains relevant and therefore compliance is necessary and warranted;

·      The underlying objective has not been defeated or thwarted as recent development applications within the vicinity have been designed to comply.

 

95.      In Initial Action Pty Ltd v Woollahra Council [2018] NSWLEC 2018, Preston CJ observed that in order for there to be 'sufficient' environmental planning grounds to justify a written request under clause 4.6 to contravene a development standard, the focus must be on the aspect or element of the development that contravenes the development standard.

 

96.      The applicant has attempted to justify that that there are sufficient environmental planning grounds to justify contravening the development standard. The request fails to justify contravening the development standard and fails to adequately demonstrate that there are sufficient environmental planning grounds to justify the contravention with respect to the circumstances or context of the site.

 

97.      In terms of the proposal providing sufficient planning grounds to justify contravention of the standard, the variation to the floor space development standard is considered to increase the bulk, scale and massing of the building, contrary to the objectives of Clause 4.4A. The visual dominance of the building will be increased and the scale of the building is larger, bulkier and inconsistent with development in the immediate vicinity of the site and the desired character of the area. The proposed additional 255sqm floor space in a single building is considered to be an overdevelopment of the site.

 

Clause 4.6(b) the concurrence of the Secretary has been obtained.

98.      Clause 4.6(5):

 

“In deciding whether to grant concurrence, the Secretary must consider-

 

(a)     whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and

(b)     the public benefit of maintaining the development standard, and

(c)     any other matters required to be taken into consideration by the Secretary before granting concurrence.”

 

99.      Pursuant to Clause 4.6(5) of KLEP 2012 the matter involves a variation of 45% and the Secretary’s consideration of this extent of variation has been delegated to the Local Planning Panel. Therefore the Panel is required to consider the matters for consideration by the Secretary. In this instance the following is relevant:

 

“the public benefit of maintaining the development standard”

 

100.    A variation of 45% where there is no extenuating site or location circumstances to warrant or substantiate the breach, the proposal is considered beyond what is acceptable when considering a variation to the standard.

 

101.    Approval of the subject proposal would create an unacceptable and unjustified precedent to vary the standard in the low density residential locality.  Being a building significantly larger than the set parameters, would result in an undesirable outcome that would set an undesirable precedent.

 

102.    The dwelling will result in an excessive bulk and built form when viewed from multiple aspects and no landscaped relief is provided in mass or built form that would be achieved between separate dwellings on separate allotments. A stringent application of the FSR standard in this instance ensures a building form, scale and design that is compatible with dwelling houses in a low density residential locality.

 

103.    On the basis of the commentary expressed above, the Clause 4.6 submission is not considered to be well founded or acceptable and would result in an undesirable precedent and building form that would undermine the intent of the development standard as it applies to the low density residential area.

 

Draft Georges River Local Environmental Plan 2020

104.    Consideration is given to the provisions of Draft Georges River Local Environmental Plan 2020 in the assessment this application.

 

105.    In this regard, the provisions have no determining weight as a result of proposed operation of Clause “1.8A Savings provisions relating to development applications” of the Draft Plan which provides “If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced.”  

 

DEVELOPMENT CONTROL PLANS

Kogarah Development Control Plan 2013

106.    The proposed development is subject to the provisions of the Interim Policy - Georges River Development Control Plan 2020 and the Kogarah Development Control Plan 2013. The following comments are made with respect to the proposal considering the objectives and controls contained within both DCPs.

 

C1- Low Density Housing

Control

Standard

Proposed

Complies

1.2 Building Scale and Height

1.2.1 Floor space Requirements

 

(5) Blank walls and flat facades should be avoided. Walls longer than 10m should be articulated by a minimum 300mm projection or indentation in the façade.

 

(6) The overall building should present a building mass that is in proportion with the allotment size, provides opportunities for modulation and articulation of the building and does not detract from the satisfaction of any other applicable design principle.

 

 

 

 

 

 

 

 

 

 

 

 

(7) Where proposed development includes a two (2) residential level element, then the second level should not extend beyond 60% of the depth of the allotment measured from the street boundary. Where side boundaries are of varying length, the second level is limited to a line across the block between the points on both boundaries.

The proposed development incorporates articulation, notwithstanding this, the bulk exceeds that envisaged in this zone.

 

 

 

The proposed building mass is not considered suitable for the allotment size as the proposal exceeds the floor space ratio development standard and results in a bulk and scale that is not representative of development in the immediate locality and what is envisaged in the zone. The Clause 4.6 variation to justify the breach of the floor space ratio (gross floor area of the dwelling) e development standard has not been supported by the assessing officer as it is not considered to be well founded.

 

60% depth = 89.7m

 

Proposed - 2 Level = 89.7m

 

 

Yes

 

 

 

 

 

 

 

 

 

No – refer to discussion in relation to FSR earlier in this report.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Yes

 

 

 

 

 

 

 

1.2.2 Building Heights

 

(1) The maximum building height must comply with the requirements specified in table below:

 

Dwelling Type

Single dwelling;

 

Maximum Height

7.2m to the underside of the upper ceiling;

7.8m to the top of the parapet;

The proposal, in parts, exceeds the 7.2m ceiling height and 7.8m parapet height; however no spot levels are provided on the plans to confirm the existing ground level of the site.

No.

1.2.3 Rhythm of the Built Elements in the Streetscape

 

(1) The primary building façade should not exceed 40% of the overall width of the total frontage.

 

 

 

 

 

 

 

 

 

 

 

 

(2) The secondary building façade should be set back a minimum of 1.5 metres from the primary building façade.

 

(3) Where the dominant built form in the streetscape provides for a pitched hip or gable ended presentation to the street, the new buildings and/or additions should reflect that roof form.

The primary façade exceeds 40% the width of the frontage however will not be readily visible from the street due to the 32m setback and slope of the land which is lower than the street level.

However, the front entry feature is to be of concrete construction, extend the width of the site and be to a height of 3.1m which is not supported.

 

The design does not incorporate a secondary façade.

 

 

 

 

The streetscape is characterised by a mix of pitched and parapet roofs. The proposed development incorporates a parapet design which is acceptable.

No

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Acceptable on merit

 

 

 

 

 

Yes

1.2.4 Building Setbacks

 

 

 

1.2.4.2 Front Setbacks

(1) Where the setback of an adjacent building is greater than 5m, an appropriate setback may be achieved by ensuring development is set back:

 

(i) the same distance as one or the other of the adjoining buildings, provided the difference between the setbacks of the two adjoining buildings is less than or equal to 2.0m (Figure 9); or

 

1.2.4.3 Side & Rear Setbacks

(1) The side and rear boundary setbacks should comply with the table below.

 

Rear Setback

Buildings are to have a minimum rear setback of 15% of the average site length, or 6m, whichever is greater.

 

Side Setbacks

For buildings having a wall height of 3.5m or less, the minimum side boundary setback is 900mm.

 

For buildings having a wall height of greater than 3.5m, the minimum side boundary setback is 1200mm.

 

Level 1 has a setback of 32.5m. This is the level that can be seen from Stuart Street.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

15% equates to 22.3m.

Development is setback 50m

 

 

 

 

Northern side setback

Ground floor: 1.2m

First floor: 1.2m

 

 

 

Southern side setback

Ground floor: 1.2m

First floor: 1.2m

 

 

Yes

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Yes

 

 

 

 

 

 

Yes

 

 

 

 

 

Yes

 

 

1.2.5 Fenestration and External Materials

(1) New buildings and alterations and additions should present a primary building façade and roofing that is constructed of materials, and within a colour range, that is complementary to the dominant character of buildings in the streetscape.

 

(2) Garage doors should not dominate the street front elevation (Figure 16).

 

 

 

 

 

 

(3) The roof should be similar to the angle of pitch, materials and colour of roofs in the streetscape (Figure 14).

 

 

 

(4) The colours of garages, window frames, and balustrading on main facades and elevations are to be integrated with the external design of the building.

 

(5) Glazing shall be limited to a maximum 35% of the total area of the overall street front façade. This includes both primary and secondary façade bays (Figure 15).

 

 

 

 

(6) Where garaging is in the front façade it should be limited to a maximum of two garage bays, with separate garage door openings of a maximum width of 3m.

The proposed development is considered to be consistent with the modern design demonstrated throughout the immediate vicinity.

 

 

 

 

 

 

The parking area cannot be seen from the street. However, the front entry feature is to be of concrete construction, extend the width of the site and to a height of 3.1m which is not supported.

 

The immediate vicinity demonstrates both pitched and parapet roofs, the proposal is consistent with contemporary development in the locality.

 

The external facades of the proposed development are considered appropriate for the locality as they are consistent with contemporary development forms.

 

The proposed front façade does not exceed the maximum 35% glazing and cannot be readily seen from the street due to the setback and slope of the land and the proposed entry feature which is 3.1m in height (and is not supported).

 

The parking area cannot be seen from the street given the site topography and the vehicle accommodation being lower than the street level.

Yes

 

 

 

 

 

 

 

 

 

 

 

 

 

No

 

 

 

 

 

 

 

 

 

Yes

 

 

 

 

 

 

 

 

Yes

 

 

 

 

 

 

 

 

Yes

 

 

 

 

 

 

 

 

 

 

 

Yes

 

1.2.6 Street Edge

(1) New developments should provide front fencing that complements fencing within the streetscape.

 

 

 

 

 

 

 

(2) Fencing is to be consistent with the requirements of Section 4.2.

 

 

 

(3) Existing vegetation in the front building line setback or on the street verge that contributes to the character of the streetscape should be preserved.

 

 

 

(4) The driveway location should not result in the removal of any street trees or removal of substantial trees on the site.

The proposed entry feature/fence does not complement the streetscape as it exceeds the maximum height permitted for front fences and is of concrete construction with columns supporting a roof structure.

 

The proposed fencing is inconsistent with the Section 4.2 requirements (refer to 4.2 controls later in this table)

 

Three (3) trees have been nominated for removal. The application was referred to Council’s Consultant Arborist and their removal is not supported as they are significant trees worthy of retention.

 

The proposed driveway results in the removal of three significant trees in the front setback which is not supported by Council’s arborist as the trees are significant, healthy species worthy of retention.

An alternate design may enable these trees to be retained.

No

 

 

 

 

 

 

 

 

 

 

 

No

 

 

 

 

 

 

No

 

 

 

 

 

 

 

 

 

 

No

 

 

 

1.3 Open Space

1.3 Open Space

(1) 15% of the site area must be deep soil landscaped area.

 

(2) Private open space should be adjacent to and visible from the main living and/or dining rooms and be accessible from those areas.

 

(3) Development should take advantage of opportunities to provide north facing private open space to achieve comfortable year round use.

 

(4) Where soil and drainage conditions are suitable, unpaved or unsealed landscaped areas should be maximised and designed to facilitate on site infiltration of stormwater.

 

(5) Existing significant trees and vegetation must be incorporated into proposed landscape treatment.

712sqm or 35%

 

 

 

The proposed development includes a satisfactory area for private open space.

 

 

 

 

The proposed private open space is appropriately located.

 

 

 

 

 

The landscape area calculation is correct.

 

 

 

 

 

 

 

 

 

Three (3) trees have been nominated for removal. The application was referred to Council’s Consultant Arborist and their removal is not supported given the quality, health and significance of these trees. An alternate design could see these trees retained.

Yes

 

 

 

Yes

 

 

 

 

 

 

 

Yes

 

 

 

 

 

 

 

Yes

 

 

 

 

 

 

 

 

 

 

No

 

1.4 Vehicular access, parking and circulation

 

(1) Car parking is to be provided in accordance with the requirements in Section B4.

 

2 spaces required

 

 

 

 

 

 

(4) Crossings are to be positioned so that on-street parking and landscaping on the site are maximised, and removal or damage to existing street trees is avoided.

 

 

 

(5) Garaging should be setback behind the primary façade.

 

 

 

(6) The maximum driveway width between the street boundary and the primary building façade is 4m.

The proposed development is satisfactory having regard to Section B4 of the KDCP 2013.

 

3 car spaces required and have been provided (the additional car space provided contributes to FSR)

 

The proposed vehicular crossing will impact on three (3) significant trees in the front setback, the removal of which is not supported. An alternate design would see these trees retained.

 

The parking area is forward of the dwelling, however given the site topography cannot be seen from the street.

 

The proposed driveway is 3m.

Yes

 

 

 

 

 

Yes

 

 

 

 

 

 

No

 

 

 

 

 

 

 

 

 

 

Yes

 

 

 

 

 

Yes

1.5 Privacy

1.5.1 Visual Privacy

(1) Windows from active rooms are to be offset between adjacent dwellings so as to avoid direct overlooking onto neighbouring windows.

 

(2) Where terraces and balconies are proposed and are elevated more than 1.5m above ground level (finished) and are located behind the street front façade, they are restricted to a maximum width of 2.5m and must be setback a minimum 3m from any adjoining property boundary.

 

(3) The area of balconies or terraces greater than 1.5m above ground level is limited to a cumulative total of 40sqm per dwelling.

 

(5) For active rooms or balconies on an upper level, the design should incorporate placement of room windows or screening devices to only allow oblique views to adjoining properties (Figures 18 and 19).

Windows facing the side boundaries are limited in size and number.

 

 

 

 

Each balcony/terrace on G, L1, L-1 and L-2 exceeds the 2.5m width control and/or are less than 3m from the northern side boundary.

 

 

 

 

 

 

 

 

The areas of balconies great than 1.5m above ground level total 186.5sqm.

 

 

 

 

The proposed development is considered to have been appropriately treated to prevent any privacy concerns to the side boundaries through the use of solid walls to terrace/balcony edges.

Yes

 

 

 

 

 

 

 

No – refer to comments below

 

 

 

 

 

 

 

 

 

 

 

 

No – refer to comments below

 

 

 

 

 

Yes, however these subsequently add to the bulk of the dwelling when viewed from neighbouring properties.

Comments on visual privacy:

The cumulative total of balcony/terrace area is 186sqm, which is over four times the DCP control of 40sqm. Additionally, four (4) terraces exceed the maximum width and/or are located within 3m of the side boundary.

 

The excessive number and area of balconies, one (1) at each level of the proposed dwelling, results in a greater overlooking impact upon neighbouring properties than a compliant proposal.

 

The primary open space outdoor terraces on Levels -2 and -3 do not have privacy screens to mitigate the potential for overlooking to neighbouring properties and will have the greatest impacts as they are the largest of the terraces and will be used regularly given they are located adjacent to the proposed pool and primary living areas.

 

The objectives of the visual privacy controls are:

 

(a) Ensure the siting and design of buildings provides a high level of visual and acoustic privacy for residents and neighbours in dwellings and private open space.

 

(b) Direct overlooking from active windows, balconies and terraces is minimised.

 

(c) Council will only consider the impact of a proposed development on a neighbouring property’s privacy in certain circumstances.

 

(d) The transmission of sound and vibration between adjoining properties should be minimised.

 

The cumulative total of balconies, many located closer to the side boundaries than permitted by the DCP, does not meet the objectives of the control. The private open space areas of adjacent neighbours will be overlooked from all levels of the proposed dwelling. The solid walls on the sides of Level-1, Ground and Level 1 balconies will not reduce the impacts as the balconies are elevated and span the width of the dwelling (with the exception of the master bed terrace which only occupies half the width of that level).

The application is considered unacceptable in this regard.

1.6 Solar Access

 

(1) At least 50% of the primary private open space of the proposed development should have access to a minimum of four hours of sunlight between 9am–3pm on 21 June.

 

(3) Where the neighbouring properties are affected by overshadowing, at least 50% of the neighbouring existing primary private open space or windows to main living areas must receive a minimum of 3 hours sunlight between 9am–3pm on 21 June (Figure 21).

The proposed private open space will receive the minimum 4 hours sunlight between 9am–3pm on 21 June.

 

 

 

 

The proposed development affects the immediate neighbour to the south; however this property receives a minimum of 3 hours sunlight between 9am–3pm to at least 50% of the existing primary private open space on 21st June.

Yes

 

 

 

 

 

 

 

 

Yes. Although the proposed dwelling satisfies the numerical solar amenity requirements, the additional built form will prevent additional sunlight reaching the adjoining allotments. Compliant FSR would have the ability to increase solar access to this allotment.

1.7 Views and view sharing

 

(1) Development shall provide for the reasonable sharing of views. Note: Assessment of applications will refer to the Planning Principle established by the Land and Environment Court in Tenacity Consulting vs Warringah Council (2004) NSWLEC140

An assessment of the view impacts is provided below.

 

No - moderate impact on views – refer to view impact assessment below.

View Impact Assessment

The subject site and surrounding lands benefit from views to the west, north-west and south-west to the Georges River. The DCP seeks to ensure the location and design of dwellings must reasonably maintain existing view corridors or vistas from the neighbouring dwellings, streets and public open space areas.

 

In assessing the view loss impact, consideration has been given to the to the four-step assessment established in Tenacity Consulting v Warringah [2004] NSWLEC 140:

 

The first step is the assessment of views to be affected. Water views are valued more highly than land views. Iconic views are valued more highly than views without icons. Whole views are valued more highly than partial views, e.g. a water view in which the interface between land and water is visible is more valuable than one in which it is obscured.

 

Comment: Existing views in a westerly, south westerly and north westerly direction from neighbouring properties include a land and water interface, and are gained over the subject site for properties to the north and south of the subject site.

 

The proposal will not impact on the existing views from neighbouring properties in a westerly direction. The proposal will obscure views to the north-west and south-west as the proposed dwelling extends further west than the existing dwelling on the site.

 

The second step is to consider from what part of the property the views are obtained. For example, the protection of views across side boundaries is more difficult than the protection of views from front and rear boundaries. In addition, whether the view is enjoyed from a standing or sitting position may also be relevant. Sitting views are more difficult to protect than standing views. The expectation to retain side views and sitting views is often unrealistic.

 

Comment: The views from neighbouring properties to the north and south of the subject site to the north-west and south-west are obtained over parts of the existing dwelling/swimming pool on the subject site. The views appear to be gained from the living areas and balconies at the rear of the dwellings. As the views are obtained across a boundary and over other properties, the expectation that this view can or should be protected is considered to be less likely.

 

However the view impact is considered to be more than the existing situation as the proposed dwelling extends further west than the existing dwelling and swimming pool.

 

It is noted that the existing views to the west are unaffected by the proposal.

 

The third step is to assess the extent of the impact. This should be done for the whole of the property, not just for the view that is affected. The impact on views from living areas is more significant than from bedrooms or service areas. The impact may be assessed quantitatively, but in many cases this can be meaningless. It is usually more useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating.

 

Comment: In terms of classification of impact, the proposal is likely to have a moderate impact on the existing views from 115 Stuart Street (to the north) and 123 Stuart Street (to the south) given that they are obtained over the existing dwelling/swimming pool. The views impacted will be to the north west and south west as the proposed dwelling is setback further west than the existing dwelling and swimming pool. The existing views to the west are unaffected by the proposal for both neighbours.

 

The fourth step is to assess the reasonableness of the proposal that is causing the impact. A development that complies with all planning controls would be considered more reasonable than one that breaches them. Where an impact on views arises as a result of non-compliance with one or more planning controls, even a moderate impact may be considered unreasonable. With a complying proposal, the question should be asked whether a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on the views of neighbours. If the answer to that question is no, then the view impact of a complying development would probably be considered acceptable and the view sharing reasonable.

 

Comment: The proposal complies with the height controls contained in Kogarah LEP 2012 and the side setback controls in Kogarah DCP 2013; however exceeds the maximum FSR for the site. The built form, bulk and scale of the proposal is inappropriate for the site and contributes to the view impacts on the northern and southern neighbours. A development that complies with the FSR through a reduction in FSR or a subdivision of the site and the accommodation of built form in a different location would have the benefit of distributing the bulk and providing greater viewing corridors.

4.2 Fences and Walls

4.2.1 Front Fences

(1) In cases where an applicant can demonstrate the need for a front fence higher than 1.4m, the maximum height of the fence must not exceed 1.8m.

 

(2) Fences over 1.4m must be setback 1.2m from the street alignment, except where Council considers a lesser distance is warranted due to the siting of the existing residence, levels or width of the allotment or exceptional circumstances of the site.

The front fence/entry feature extends to a height of up to 3.1m without justification provided by the applicant.

 

 

 

The walls of the front entry feature are setback from the front boundary; however the portico appears to extend over the front boundary. The height, design and location of the entry feature are not supported.

No

 

 

 

 

 

 

 

 

No

4.6 Swimming pools, spas and enclosures

 

(1) Swimming pools/ spas should be located at the rear of properties.

 

(3) Swimming pools/spas must be positioned a minimum of 900mm from the property boundary with the water line being a minimum of 1500mm from the property boundary.

 

(4) In-ground swimming pools shall be built so that the top of the swimming pool is as close to the existing ground level as possible. On sloping sites this will often require excavation of the site on the high side to obtain the minimum out of ground exposure of the swimming pool at the low side.

 

(7) On steeply sloping sites, Council may consider allowing the top of the swimming pool at one point or along one side to extend up to 1m above natural ground level, provided that the exposed face of the swimming pool wall is treated to minimise impact. The materials and design of the retaining wall should be integrated with, and complement the style of the swimming pool.

 

(8) Filling is not permitted between the swimming pool and the property boundary. The position of the swimming pool, in relation to neighbours and other residents, must be considered to minimise noise associated with activities carried out in the swimming pool or from the swimming pool equipment, such as cleaning equipment.

 

(10) A pool fence complying with the legislation should separate access from the residential dwelling on the site to the pool.

 

 

 

 

(11) Safety and security measures for swimming pools must comply with the relevant requirements of the Swimming Pools Act and any relevant Australian Standards.

The proposed pool is located in the rear yard of the property.

 

 

The proposed pool waterline is located 1.5m from the southern side boundary and 7.5m from the northern side boundary.

 

 

 

The pool and paved area at the rear is cantilevered due to slope of land (elevated pools are not out of character for this locality), however the proposed structural support for the pool has adverse visual impacts when viewed from the north and is out of character for the residential setting of the site.

 

The proposed development is located on a steep site; however the proposed structural support for the pool has adverse visual impacts when viewed from the north and is out of character for the residential setting of the site.

 

 

 

 

 

 

 

 

The proposal does not include fill between the pool and the boundary.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Pool fencing is nominated on the plans to comply with the relevant Australian Standards. If the application was to be supported a condition would be imposed to reinforce this criterion.

 

Pool could comply with NCC and relevant Australian Standard.

Yes

 

 

 

 

Yes

 

 

 

 

 

 

 

 

 

No

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

No

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Yes

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Yes

 

 

 

 

 

 

 

 

 

Yes

 

Interim Policy Georges River Development Control Plan 2020

107.    The proposed development is subject to the provisions of the Interim Policy Georges River DCP 2020. All other aspects have been thoroughly assessed under Kogarah DCP 2013. The aim of an Interim Policy is to set a consistent approach for the assessment of residential development within the Georges River Local Government Area, until such a time as a comprehensive DCP is prepared and implemented. Comments are made with respect to the proposal satisfying the objectives and controls contained within the DCP.

 

Section

Interim Policy Control

Proposal

Complies

Building Setback (Front)

 

 

Minimum setback from the primary street boundary is:

 

a) 4.5m to the main building face.

b) 5.5m to the front wall of garage, carport roof or onsite parking space.

Or

a) Within 20% of the average setback of dwellings on adjoining lots.

 

 

 

32.5m

 

32.5m

 

 

 

N/A

 

 

 

Yes

 

Yes

 

 

 

N/A

Building Setback (Rear)

 

 

Buildings are to have a minimum rear setback of 15% of the average site length, or 6m, whichever is greater.

 

Where the existing pattern of development displays an established rear setback, development should recognise and respond to site features and cross views of neighbouring properties.

15% depth = 22.35m

Setback = 50m

 

 

  

Consistent

Yes

 

 

 

 

Yes

 

Building Setback (Side)

 

The minimum side setback outside the FSPA is 900mm (ground floor) and 1.2m (first floor)

 

The minimum side setback inside the FSPA is 900mm (ground floor) and 1.5m (first floor) with a minimum of 5.5m in front of any proposed new garage.

Min. 1.2m all levels

 

 

 

 

N/A

Yes

 

 

 

 

N/A

Landscaped area

 

Where located outside the FSPA, a minimum of 20% of site area is landscaped open space.

 

Where located inside the FSPA, a minimum of 25% of the site area is landscaped open space.

 

The minimum dimension of landscaped open space is 2m, designed in a useable configuration. 

 

A minimum of 15sqm of the landscaped open space is provided between the front setback and the street boundary in the form of a front yard.

N/A

 

 

 

 

35% (712sqm)

 

 

 

 

Complies

 

 

 

 

100sqm (lower level garden)

N/A

 

 

 

 

Yes

 

 

 

 

Yes

 

 

 

 

Yes

 

Private Open Space

 

An area of Principal Private Open Space is to be provided which:

 

a) has a minimum area of 30sqm.

b) has a minimum dimension of 5m, designed in a useable configuration.

c) is located at ground level and behind the front wall of the dwelling.

d) is directly accessible from a main living area.

 

Private open space is proposed within a number of terraces and balconies at each level of the dwelling, plus a levelled area at the rear of the dwelling.

No. The accumulative areas of terraces and balconies is excessive and the levelled landscaped area is inconsistent with the topography of the site and involves earthworks to offset the excessive excavation proposed as part of the dwelling design to address site stability issues identified in the Geotechnical Report submitted with the DA.

Basement/

Land Modification

 

 

Basements are permitted where Council’s height controls are not exceeded, and it is demonstrated that there will be no adverse environmental impacts (e.g. affectation of watercourses and geological structure).

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Basements for low grade sites (i.e. < 12.5% Grade front to rear):

 

a) Basements on land where the average grade is less than 12.5% are permitted only where they are not considered a storey (see definition below) and the overall development presents as 2 storeys to the street.

 

b) A basement is not considered a storey if it is:

 

·   situated partly below the finished ground and the underside of the ceiling is not more than 1m above the natural ground at the external wall for a maximum of 12m in length, with the exception of the façade in which the garage door is located.

Basement parking is not proposed as part of the proposal; however the land is to be significantly modified, with excavation up to 10m in depth to accommodate the lower levels of the dwelling.

 

This extent of excavation is not supported and has been identified in the Geotechnical Report submitted with the DA as not being suitable for the site due to site stability and safety concerns.

 

N/A

 

No

Solar Access

Kogarah

Where the neighbouring properties are affected by overshadowing, at least 50% of the neighbouring existing primary private open space or windows to main living areas must receive a minimum of 3 hours sunlight between 9am–3pm on the winter solstice (21 June).

 

Note 1: development applications for development two storeys and over are to be supported by shadow diagrams demonstrating compliance with this design solution.

 

Note 2: Exemptions will be considered for developments that comply with all other requirements but are located on sites with an east-west orientation.

  

The neighbouring properties to the east and west will receive more than 3 hours sunlight to more than 50% of their respective private open space areas and living room windows.

  

Yes

 

IMPACTS

 

Natural Environment

108.    The proposal seeks to remove three (3) trees from the front setback of the site. The request for removal has been assessed by Council’s Consultant Arborist and is not supported. The three (3) trees proposed for removal are in the location where the new driveway is proposed (the existing driveway is to be removed and replaced with a pedestrian path and garden with the new location of the driveway being where the three (3) trees exist). The applicant’s arborist have identified these trees as being of high and medium significance, and would otherwise be worthy of retention if not for the proposed driveway.

 

109.    As discussed earlier in this report, the Geotechnical Report submitted with the application concludes the site is not suitable for the proposed extent of excavation and will pose safety risks to human life as a result of the disturbance and removal of rock boulders. The proposal has failed to provide details on the quantity, number and location of required rock bolts. From the commentary provided in the Geotechnical Report this may necessitate work on adjoining allotments, which is not addressed as part of this application.

 

110.    The extent of excavation, up to 10m in depth, to accommodate a number of proposed levels of the dwelling, is excessive and does not ensure the protection of the natural landscape or topography of the site.

 

111.    The proposed works will directly impact the natural environment given the extent of the built form and will also indirectly impact the environment through excavation works and the change in hydrology.  

 

Built Environment

112.    The built form of the proposed development is of a bulk and scale that is inconsistent with contemporary development in the locality and what is envisaged by the density controls in the Local Environmental Plan regard gross floor area. The development presents unreasonable visual bulk impacts to the neighbouring properties along both the northern and southern side elevations.

 

113.    The proposal will result in a dwelling of 825.3sqm, approximately 254sqm above the permissible floor space, resulting in an FSR of 0.4:1 and numerical variation to the standard of 45%. A Clause 4.6 variation was submitted in support of the non-compliance but is considered to be inadequate.

 

Social Impact

114.    The proposal is not considered to result in an unreasonable social impact.

 

Economic Impact

115.    The proposal is not considered to result in an unreasonable material economic impact.

 

Suitability of the Site

116.    The site is zoned R2 – Low Density Residential. Whilst the proposal being a dwelling and ancillary works, is a permissible form of development in this zone, it is considered that the proposal will have an adverse impact on the adjoining properties and the broader locality in its current form. The proposal is considered an overdevelopment and ultimately is unsuitable for the site.

 

SUBMISSIONS, REFERRALS AND THE PUBLIC INTEREST

117.    The application was advertised and adjoining residents were notified by letter and given fourteen (14) days in which to view the plans and submit any comments on the proposal. One (1) submission was received during the neighbour notification period.

 

Survey plan

118.    The survey plan submitted with the DA is dated 2004 and does not reflect the current works on site, nor the current buildings on the adjacent property.

 

119.    Comment: The architectural plans show the current buildings on adjacent properties; however no spot levels are shown on the plans to allow a proper assessment of the proposal in relation to height above ground and alteration to natural ground levels. The survey is considered to be deficient for the assessment of this application.

 

Council Referrals  

Development Engineer

120.    Council’s assessment of the drainage system concluded that the proposal is satisfactory and conditions of consent have been provided should the application be supported.

 

Consultant Arborist

121.    Objection is raised for the removal of trees within the front setback to accommodate the proposed driveway, and the proposed is not supported on these grounds as there is a potential alternative that could result in retention of these trees.

 

External Referrals

Ausgrid

122.    The application was referred to Ausgrid as per Clause 45(2) of the State Environmental Planning Policy (Infrastructure) 2007. Correspondence was received on 29 July 2020 and no objections are raised.

 

Contributions

123.    The development is subject to Section 7.12 (former Section 94A Contribution) contribution as the proposed cost of works exceed $100,000.00. In accordance with Council’s Section 94A Contributions Plan 2017, Section 7.12 – Fixed Development Consent Levies are applicable to dwelling house developments. A condition of consent requiring payment of the contribution will be imposed should the application be supported.

 

CONCLUSION

124.    Development consent is sought for demolition works, tree removal, and construction of a multi-level dwelling house, swimming pool, front fence, landscaping and site works.

 

125.    The proposal fails to provide an adequate Clause 4.6 submission to justify the necessity for the variation of the Kogarah LEP 2012 requirement for Floor Space Ratio. The proposal seeks to vary the 0.28:1 (570.4sqm) standard to 0.41:1 (841.8sqm) equating to a variation of 47%.

 

126.    The proposal has been assessed in accordance with Section 4.15 (1) of the Environmental Planning and Assessment Act, 1979. As discussed throughout this report, the proposal fails to provide an adequate Clause 4.6 statement to justify the necessity for the variation of the Kogarah Local Environmental Plan 2012 requirement for Floor Space Ratio, the proposal fails to satisfy all the R2 Low Density zone objectives and a number of Kogarah Development Control Plan controls. The proposed development is not considered to be suitable for the site or the locality and is likely to set an undesirable precedent.

 

127.    It is considered that the proposed development is not of a size or scale that is suitable for the site having regard to its size and shape, its topography, vegetation and relationship to adjoining developments and the waterway and the lack of adequate justification supporting a significant Floor Space Ratio variation.

 

DETERMINATION AND STATEMENT OF REASONS

128.    Statement of Reasons

·      The proposed development is not considered to be an appropriate scale and form for the site and the character of the locality.

·      The excessive non-compliance of the Floor Space Ratio standard is unjustified and is considered unacceptable.

·      The proposed development will have unacceptable adverse impacts on the natural and built environments.

·      The proposal involves the removal of three (3) healthy and significant trees from the front setback, which is considered to be unnecessary.

·      The proposed development will result in unacceptable adverse impacts on the amenity of adjoining residents and the locality and is likely to set an undesirable precedent.

·      In consideration of the aforementioned reasons, the proposed development is not a suitable and planned use of the site and its approval is not in the public interest.

 

Determination

129.    THAT pursuant to Section 4.16(1)(b) of the Environmental Planning and Assessment Act 1979 (as amended) Council refuses DA2020/0247 for demolition works, tree removal, and construction of a multi-level dwelling house, swimming pool, front fence, landscaping and site works at Lot B in DP33563 and known as 117 Stuart Street, Blakehurst, for the following reasons:

 

1.... Pursuant to Section 4.15 (1)(a)(i) of the Environmental Planning and Assessment Act 1979, the proposed development does not comply with State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 as it involves the removal of three (3) healthy and Category A-rated trees, being trees that are important trees suitable for retention for more than 10 years and worthy of being a material constraint.

 

2.... Pursuant to Section 4.15 (1)(a)(i) of the Environmental Planning and Assessment Act 1979, the proposed development does not comply with State Environmental Planning Policy (Coastal Management) 2018 as the built form is inconsistent with the development forms immediately adjoining the site and along the bay, as it proposes a continuous built form with no relief as it extends down the site, as there is no separation of built form or landscaping visible from the bay.

 

3.... Pursuant to Section 4.15 (1)(a)(i) of the Environmental Planning and Assessment Act 1979, the proposed development does not comply with the following sections of Kogarah Local Environmental Plan 2012:

 

a.  Clause 1.2 - Aims of the Plan relating to the orderly and sustainable development given the excessive density breach and resultant bulk and scale of the proposal;

 

b.  Clause 1.2 - Definitions: the proposal contains two self-contained dwellings and application has been made for one dwelling house;

 

c.  Clause 2.3 – Zone Objectives - R2 Low Density Residential;

 

d.  Clause 4.4A – Exceptions to floor space ratio for residential accommodation in Zone R2, having regard to the extent of variation sought;

 

e.  Clause 4.6 – Exceptions to development standards, having regard to lack of adequacy in justifying the need for development standard variation;

 

f.   Clause 5.4(2) - Controls relating to miscellaneous permissible uses, having regard to the 137sqm of floor area of the proposal for use as a ‘home business’ exceeding the 30sqm maximum permitted; and

 

g.  Clause 6.2 – Earthworks, having regard to the extent of excavation to accommodate multiple levels of the proposal and the extent of fill proposed to provide a level landscaped area in the rear yard.

 

4.... Pursuant to Section 4.15 (1)(a)(iii) of the Environmental Planning and Assessment Act 1979, the proposed development does not comply with the following sections of Kogarah Development Control Plan 2013:

 

a... Control 1.2.1 Floor Space Requirements;

b... Control 1.5.1 Visual Privacy;

c... Control 1.2.6 Street edge;

d... Control 1.3(8) Open space;

e... Chapter 4.2 Fences and Walls; and

f.... Chapter 4.6 Swimming Pools and Spas.

 

5.... The proposal is unsatisfactory having regard to Section 4.15(1)(b) of the Environmental Planning and Assessment Act 1979 as the development will cause adverse impacts upon the following aspects of the environment:

 

a... Natural Environment: Three (3) healthy and significant trees are proposed for removal which could be retained with an alternate design and the natural site topography is unnecessarily being significantly altered to accommodate the dwelling and private open space area.

 

b... Built Environment: An adverse impact will result from the proposed development on the amenity of adjoining premises relating to building bulk, scale and form, and overlooking impacts upon adjoining neighbours.

 

6.... The proposed development is unsatisfactory having regard to Section 4.15(1)(c) of the Environmental Planning and Assessment Act 1979 the proposed development is not considered to be suitable for the site or its locality and is likely to set an undesirable precedent as:

 

a.. The built form is excessively bulky for the site and results in adverse privacy and visual impacts for residential neighbours.

b.. The information submitted with the application is deficient in detail to make a full and proper assessment of the proposed height of the dwelling.

c.. No information has been provided regarding the retaining walls required to support the levelled area proposed in the rear yard.

d.. The Geotechnical Report concludes the site is unsuitable for the extent of excavation proposed and will pose a risk to human life. No mitigation strategy has been included with the application to address this.

 

7.... Approval of the development would not be in the public interest and contrary to Section 4.15(1)(e) of the Environmental Planning and Assessment Act 1979.

 

 

 

 

ATTACHMENTS

Attachment 1

Site Plan and Elevations - 117 Stuart St Blakehurst

 


Georges River Council - Georges River Local Planning Panel (LPP) - Thursday, 15 October 2020

LPP049-20              117 Stuart Street Blakehurst

[Appendix 1]          Site Plan and Elevations - 117 Stuart St Blakehurst

 

 

Page 54

 


 


 


Georges River Council – Local Planning Panel   Thursday, 15 October 2020

Page 57

 

REPORT TO GEORGES RIVER COUNCIL

LPP MEETING OF Thursday, 15 October 2020

 

LPP Report No

LPP050-20

Development Application No

DA2019/0645

Site Address & Ward Locality

14 Maple Street Lugarno

Peakhurst Ward

Proposed Development

Construction of decking around an above ground swimming pool which is currently being used to house fish

Owners

Qixin Xu

Applicant

Qixin Xu

Planner/Architect

Original Plans drawn by Li Can and checked by Ming Hsieh – Revised plans received by an unknown author

Date Of Lodgement

20/12/2019

Submissions

One (1)

Cost of Works

$15,840.00

Local Planning Panel Criteria

The application is referred to the Panel for review and determination as the application is considered to a matter in the public interest in accordance with Council Officer delegations of 3 February 2020.

List of all relevant s.4.15 matters (formerly s79C(1)(a))

Draft Environment State Environmental Planning Policy, Greater Metropolitan Regional Environmental Plan No 2 – Georges River Catchment, State Environmental Planning Policy No 55 - Remediation of Land, State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017, State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004,

Draft Environment State Environmental Planning Policy, Draft State Environmental Planning Policy – Remediation of Land,

Hurstville Local Environmental Plan 2012, Hurstville Development Control Plan No1, Draft Georges River Local Environmental Plan 2020.

List all documents submitted with this report for the Panel’s consideration

Architectural plans

Statement of Environmental Effects

Annotated Architecturals

 

Report prepared by

Development Assessment Planner

 

 

Recommendation

That the application be refused in accordance with the reasons stated in the report.

 

Summary of matters for consideration under Section 4.15

Have all recommendations in relation to relevant s4.15 matters been summarised in the Executive Summary of the assessment report?

 

Yes 

Legislative clauses requiring consent authority satisfaction

Have relevant clauses in all applicable environmental planning instruments where the consent authority must be satisfied about a particular matter been listed and relevant recommendations summarised, in the Executive Summary of the assessment report?

 

 

Yes

Clause 4.6 Exceptions to development standards

If a written request for a contravention to a development standard (clause 4.6 of the LEP) has been received, has it been attached to the assessment report?

 

Not Applicable

 

Special Infrastructure Contributions

Does the DA require Special Infrastructure Contributions conditions (under s7.24)?

 

Not Applicable

Conditions

Have draft conditions been provided to the applicant for comment?

 

No, the application is recommended for refusal which can be viewed when the report is published.

 

Site Plan

The subject allotment is outlined in blue

 

Executive Summary

Proposal

1.         The subject development application (DA) seeks consent for the construction of decking, stairs, retaining walls, privacy screening and the planting of vegetation to address privacy and overlooking from the new decking. The decking is irregular in design and extends from the rear of the dwelling house adjacent to the northern boundary to the swimming pool and returns in a westerly direction to form a coping for the swimming pool. The works will also need to comply with the swimming pool fencing at 14 Maple Street, Lugarno.

 

2.         The existing above ground swimming pool, which has been in existence for many years, has been converted to a fish pond. The proposed decking is to provide an elevated walkway around the pool structure and access stairs to the pool equipment as an area for enjoying the pond and an area for a person to stand to undertake maintenance.

 

3.         Council has previously considered DA2019/0028 for works of a similar design as the subject application, which was determined by way of refusal on 19 July 2019. The reasons for refusal included non-compliance with Hurstville Local Environmental Plan 2012 and the Hurstville Development Control Plan No 1, site suitability of the development, inconsistency with the public interest and impacts on the adjoining allotments as detailed in the submissions.

 

4.         Following the determination of DA2019/0028 (previous DA) Council Officers met with the owners of the site and their designer as well as undertaking a site inspection to provide pre lodgement advice for the submission of a revised proposal. The owners were advised that it was evident there had been significant vegetation removal from the site which has result in overlooking and privacy impacts onto the adjoining allotments. The neighbouring allotments are considerably lower than the subject site due to the topography of the    locality. The plans submitted with DA2019/0645 (current DA) including amendments in an attempt to resolve the reasons for refusal of DA2019/0028.

 

5.         The plans that accompany the subject application have included design amendments; however the plans contain errors with respect to the location of the proposed works and the relationship to the boundaries of the site and the existing site works.

 

6.         In particular, the current DA plans are not accurate in terms the setback of the existing swimming pool from side and rear boundaries, and are also not accurate in terms of ground levels depicted on the plans which are not reflective of what exists on site.  Accordingly, these plans cannot be relied upon for assessment purposes and construction of any approved development based on such plans would not be able to achieve the nominated setbacks.

 

7.         Explaining the errors in the plans with the owners was difficult, as a result a site inspection was under taken to take measurements of the existing structures relative to the site boundaries and provide this information to the owners in order to remedy the inconsistencies.

 

8.         A notated plan with the outcomes of the site inspection together with the photos taken during the site inspection were forwarded to the designer on 26 June 2020 as requested, and later the owners as the designer was medically unfit to proceed further with the proposal.

 

9.         Following the provision of this information a new designer was engaged by the Owners. Council Officers also provided the annotated plans and photos as well as a detailed briefing of what the issues were with the proposal in an attempt to have the necessary information provided to facilitate a full and proper assessment. On 8 September 2020 revised plans were submitted, these plans increased in width of the decking and stairs and the setbacks and levels remained unresolved. In fact the plans received worsened the inconsistencies with the plans and that which exists on site.

 

Site and Locality

10.      The subject allotment is legally identified as Lot 8; Section 2; DP 237428 with a street address of 14 Maple Street, Lugarno. The site is an irregularly shaped allotment with a 16.765m frontage to Maple Street, a 41.105m northern side boundary, a 36.88m southern side boundary, a rear boundary of 16.955m and a total site area of 644.9sqm.

 

11.      A two storey brick dwelling is currently located on site. At the rear of the site is an above ground swimming pool currently used as a fish pond.

 

12.      Adjacent to the subject site is a range of single, double and multi-level dwellings of similar scale and character. It is noted that the locality includes several significant trees. No trees are proposed for removal under this application.

 

Zoning and Permissibility

13.      The site is zoned R2 – Low Density Residential under the Hurstville Local Environmental Plan, the proposed development being ancillary development to a dwelling is permissible with development consent in the zone.

 

Submissions

14.      The application was neighbour notified in accordance with the provisions of Hurstville Development Control Plan and Council’s Community Engagement and Participation Plan for a period of 21 days from 14 January to 4 February 2020.

 

15.      In response one (1) submission objecting to the proposal was received, the concerns raised in the submission are discussed in detail later in this report and broadly relate to the following:

 

·      External appearance of the under-side of the deck,

·      Concerns that landscaping not be able to address such visual impact concerns, and it is requested that a screening structure be installed, and

·      Powers to enforce landscape maintenance.

 

Reason for Referral to Local Planning Panel

16.      This application is referred to the Local Planning Panel for consideration and determination as the proposed is considered in the public interest as referenced in Council Officer Delegations of 3 February 2020.

 

Conclusion

17.      Having regard to the matters for consideration Part 4.15 of the Environmental Planning and Assessment Act 1979, Development Application No. DA2019/0645 is recommended for refusal.

 

Report in Full

Proposal

18.      The subject development application (DA) seeks consent for the construction of decking, stairs, retaining walls, privacy screening and the planting of vegetation to address privacy and overlooking from the new decking. The decking is irregular in design and extends from the rear of the dwelling house adjacent to the northern boundary to the swimming pool and returns in a westerly direction to form a coping for the swimming pool. The works will also need to comply with the swimming pool fencing at 14 Maple Street, Lugarno. The works proposed are specifically outlined below:

 

·      Construction of a rear raised and stepped timber deck adjacent to the northern side boundary and returning in a western direction adjacent to the western site of the swimming pool (the deck setback in unknown as the plans are inaccurate);

·      Amendments to the pool fencing to facilitate the new works;

·      Privacy screens along the perimeter of the decking that vary from 1.2m to 1.8m in height; and

·      Associated landscaping along the northern and western boundaries.

 

The Site and Locality

19.      The subject allotment is legally identified as Lot 8; Section 2; DP 237428 with a street address of 14 Maple Street, Lugarno. The site is located on the western side of Maple Street. The site is an irregularly shaped allotment with a 16.765m frontage to Maple Street, a 41.105m northern side boundary, a 36.88m southern side boundary, a rear boundary of 16.955m and a total site area of 644.9sqm. The site has a fall of approximately 7.96m measured from the front boundary to the rear (or 20.46%).

 

20.      The immediate locality is characterised by low density residential land uses. Adjoining the site to the north and south are two (2) storey residential dwellings. The site is in close proximity to Great Moon Bay and the Lugarno Board walk.

 

21.      The site is located within the Foreshore Scenic Protection Area. The area is generally residential in character. It is noted that a sewer line bisects the rear portion of the site. It is noted that the locality includes several significant trees. No trees are proposed for removal under this application.

 

Background

 

Subject Site

22.      A review of Council’s records could not locate an approval for the existing above ground swimming pool which has been converted to a fish pond. Historical aerial photos show that the pool has existed since at least 2001, and the site inspection by the Assessment Officer indicates that the pool is 20-30 years old.

 

23.      According to submissions from neighbours and past inspections by Council Officers, the above ground swimming pool has for several years been used as a fish pond, rather than for recreational swimming.

 

24.      The pool located at the rear of the site has been the subject of a number of compliance enforcement orders.

 

25.      The first enforcement action taken by Council was under order (ON2015/0066 dated 8 April 2015), which required the installation of pool fencing. Prior to this, the pool did not have a fence, raising safety concerns. Subsequently, an additional enforcement order was issued (ON2017/0058 dated 17 February 2017) requiring the installation of a pool fence, which has since been installed.

 

Previous Development Application – DA2019/0028

26.      A Development Application (DA2019/0028) which was for a similar type of development on the subject site was refused. The original plans submitted with this Development Application encompassed a roof over the walkways and 2m high privacy screens.

 

27.      The reasons for refusal included non-compliance with Hurstville Local Environmental Plan 2012 and the Hurstville Development Control Plan No 1, site suitability of the development, inconsistency with the public interest and impacts on the adjoining allotments as detailed in the submissions.

 

28.      Throughout the processing of DA2019/0028 and discussions that occurred throughout the application and post the determination have resulted in a reduction in the size of the deck, the addition of stairs to the northern elevation, lowering of the privacy screens, landscaping to the northern and western boundaries of the allotment and the removal of the roofing over the decking.

 

Current Development Application – DA2019/0645

29.      This development application was lodged on 10 December 2019. A site inspection was required to be undertaken and due to COVID-19 this was undertaken on 18 June 2020.

 

30.      During the site inspection, it became evident many of the proposed setbacks (as shown on the DA plans) were incorrect. There were also other inconsistencies with the plans in relation to the deck interface with the dwelling, the location of pavers and concrete that is existing and the existing ground level in the area where the works are being undertaken.

 

31.      To assist the applicant, Council Officers prepared an annotated plan and photos whilst on site to demonstrate the inconsistencies and the areas required to be addressed via amended plans. This annotated plan was forwarded to the designer on the 29 June 2020 as well as to the owner and again to the newly engaged designer on 2 September 2020. The following is an extract of the annotated plan that was provided to the applicant:

 

Figure 1: Site plan annotated with the inconsistencies measures and observed on site (provided to the applicant on 29 June 2020).

 

32.      Amended plans were provided on 8 September 2020. The amended plans remain inaccurate and do not reflect what is on site or the correct setbacks of the existing swimming pool, or existing site contours and levels. In addition the width of the decking and stairs have been increased in width, resulting in a worsening of the inaccuracies.

 

Figure 2: Amended plan submitted on the 8 September 2020

 

33.      The amended plans have addressed some of the areas of inconsistency, but a majority of the inconsistencies remain. These include the dimensions to the rear setback. Figure 1 demonstrates that the rear setback (from the western boundary) was measured to be 1360mm however the dimensions shown on the plan in Figure 2 is 970mm+800mm which is 1770mm and inconsistent with the measurements taken on site. The existing ground floor level and interface with the dwelling also remains incorrect.

 

Figure 3: From the northwest corner of the site along the northern boundary of 14 Maple Street, Lugarno

 

Figure 4: Along the rear (western) boundary of 14 Maple Street, Lugarno

 

34.      With the number and nature of the inaccuracies of the plans in terms of side/rear boundary setbacks, site levels and the width of the decking and stairs, the submitted DA plans cannot be relied upon to undertake a full and proper assessment of the DA, nor could they be relied upon in any potential development consent to be issued by Council as there would be no certainty as to the finished built form outcome.

 

35.      Council Officers have provided the applicant with opportunities to address these issues throughout the assessment of this DA; however the applicant has not been able to provide plans with the required level of accuracy for assessment purposes.

 

APPLICABLE PLANNING CONTROLS

 

Statutory Consideration

ENVIRONMENTAL PLANNING AND ASSESSMENT ACT 1979

36.      The following Environmental Planning Instruments are relevant to this application:

·      State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004;

·      Greater Metropolitan Regional Environmental Plan No 2 – Georges River Catchment;

·      State Environmental Planning Policy No 55 - Remediation of Land;

·      State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017;

·      Draft State Environmental Planning Policy 55 – Remediation of Land;

·      Draft Environment State Environmental Planning Policy;

·      Hurstville Local Environmental Plan 2012;

·      Hurstville Development Control Plan No1; and

·      Draft Georges River Local Environmental Plan 2020.

 

Environmental Planning Instruments

Deemed State Environmental Planning Policy – Georges River Catchment

37.      Conditions surrounding the materials of the terrace extension and material beneath the subject extension allow natural ingress of water. No change to the stormwater design is required as a result of the proposed development. The proposal does not cause inconsistencies with Council’s Water Management Policy and would satisfy the relevant provisions of the Deemed State Environmental Planning Policy – Georges River Catchment.

 

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

38.      A BASIX Certificate is not required for the proposal as the cost of works is below $50,000 and the pool is existing.

 

State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017

39.      The Vegetation SEPP regulates clearing of native vegetation on urban land and land zoned for environmental conservation/management that does not require development consent.

 

40.      The Vegetation SEPP applies to clearing of:

 

a)    Native vegetation above the Biodiversity Offset Scheme (BOS) threshold where a proponent will require an approval from the Native Vegetation Panel established under the Local Land Services Amendment Act 2016; and

b)    Vegetation below the BOS threshold where a proponent will require a permit from Council if that vegetation is identified in the council’s development control plan (DCP).

 

41.      The objectives of the SEPP are to protect the biodiversity values of trees and other vegetation in non-rural areas and preserve the amenity of non-rural areas through the preservation of trees and other vegetation. This policy is applicable pursuant to Clause 5(1) of the SEPP as the site is within both Georges River Council and the R2 Low Density Residential zone.

 

42.      Pursuant to Clause 8(1) of the SEPP, clearing does not require authority under the policy as it is a type of clearing that is authorised under Section 60O of the Local Land Services Act 2013 (specifically, that associated with a development consent issued under Part 4 of the Environmental Planning and Assessment Act 1979).

 

43.      The application does not involve any vegetation removal, as such the proposal is considered satisfactory having regard to State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017.

 

State Environmental Planning Policy No 55 – Remediation of Land

44.      SEPP 55 aims to promote the remediation of contaminated land in order to reduce the risk of harm to human health or any other aspect of the environment.

 

45.      Clause 7 requires contamination and remediation to be considered in determining a development application. The consent authority must not consent to the carrying out of development on land unless it has considered whether or not the land is contaminated.

 

46.      The site has a history of residential uses and as such, site contamination is not suspected. In this regard, no further assessment is warranted with regard to site contamination, and further, there is only minimal excavation proposed (for example, for footings for the proposed decking).

 

Draft Remediation of Land SEPP

47.      The Department of Planning and Environment has announced a Draft Remediation of Land SEPP, which will repeal and replace the current State Environmental Planning Policy No 55 — Remediation of Land.

 

48.      The main changes proposed include the expansion of categories of remediation work which requires development consent, a greater involvement of principal certifying authorities particularly in relation to remediation works that can be carried out without development consent, more comprehensive guidelines for Councils and certifiers and the clarification of the contamination information to be included on Section 149 Planning Certificates.

 

49.      Whilst the proposed SEPP will retain the key operational framework of SEPP 55, it will adopt a more modern approach to the management of contaminated land. The Draft SEPP will not alter or affect the findings in relation to contamination at the site.

 

50.      The site has a history of residential uses and as such, site contamination is not suspected. In this regard, no further assessment is warranted with regard to site contamination, and further (as stated above), there is only minimal excavation proposed (for example, for footings for the proposed decking).

 

Draft Environment SEPP

51.      The Draft Environment SEPP was exhibited from 31 October 2017 to 31 January 2018. This consolidated SEPP proposes to simplify the planning rules for a number of water catchments, waterways, urban bushland, and Willandra Lakes World Heritage Property.

 

52.      Changes proposed include consolidating the following seven existing SEPPs:

 

·      State Environmental Planning Policy No. 19 – Bushland in Urban Areas

·      State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011

·      State Environmental Planning Policy No. 50 – Canal Estate Development

·      Greater Metropolitan Regional Environmental Plan No. 2 – Georges River Catchment

·      Sydney Regional Environmental Plan No. 20 – Hawkesbury-Nepean River (No.2-1997)

·      Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005

·      Willandra Lakes Regional Environmental Plan No. 1 – World Heritage Property

 

53.      The proposal is not inconsistent with the provisions of this Draft Instrument.

 

Hurstville Local Environmental Plan (HLEP) 2012

54.      The site is zone R2 – Low Density Residential under the Hurstville Local Environmental Plan 2012 (see zoning map below). The proposed development is permissible with consent.

 

Figure 5: Zoning Map. Source: HLEP 2012

 

55.      The objectives of the zone are as follows:

 

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

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

•      To encourage development of sites for a range of housing types, where such development does not compromise the amenity of the surrounding area, or the natural or cultural heritage of the area.

•      To ensure that a high level of residential amenity is achieved and maintained.

•      To encourage greater visual amenity through maintaining and enhancing landscaping as a major element in the residential environment.

•      To provide for a range of home business activities where such activities are not    likely to adversely affect the surrounding residential amenity.

 

56.      As stated throughout this report, based on the plans currently submitted, Council is unable to confirm that the proposal is consistent with the objectives, mainly “to ensure that a high level of residential amenity is achieved and maintained”. The development is considered inconsistent with the objectives of the zone under HLEP 2012, however the plans currently submitted do not enable Council to make a full and proper assessment in this regard.

 

Part 4 – Principal Development Standards

Applicable LEP Clause

Development Standards

Development Proposal

Complies

4.3 Height of Buildings

9m

The proposal does not result in any change to the height of the dwelling. The height of the deck is 1.91m (according to dimensions on northern elevation).

Yes

4.4 Floor Space Ratio

0.6:1

The proposal does not alter the approved FSR.

Yes

 

Part 5 - Miscellaneous Provisions

Applicable LEP Clause

Development Standards

Development Proposal

Complies

5.10 Heritage Conservation

The objectives of this clause are as follows:
a) To conserve the environmental heritage of Hurstville.
b) To conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views.

c) Conserve archaeological sites,

d) To conserve Aboriginal objects and Aboriginal places of heritage significance.

Site is not a heritage item and neither is it located within the vicinity of any heritage items

Yes

5.11 Bush Fire Hazard Reduction

Bush fire hazard reduction work authorised by the Rural Fires Act 1997 may be carried out on any land without development consent.

The site has not been identified as bushfire prone land.

 

Yes

 

Part 6 – Additional Local Provisions

Applicable HLEP 2012 Clause

HLEP Provisions

Development Provisions

Complies

6.1 Acid Sulphate Soils

The site is not affected by ASS.

6.3 Limited Development on Foreshore Area

The site is not located in a foreshore area.

6.4 Foreshore Scenic Protection Area (FSPA)

Development consent must not be granted to development on land to which this clause applies unless the consent authority has considered how the development would:

(a)  affect the natural environment, including topography, rock formations, canopy vegetation or other significant vegetation, and

(b)  affect the visual environment, including the views to and from the Georges River, foreshore reserves, residential areas and public places, and

(c)  affect the environmental heritage of Hurstville, and

(d)  contribute to the scenic qualities of the residential areas and the Georges River by maintaining the dominance of landscape over built form.

The proposed deck will not be able to be seen from the foreshore and is not expected to have an unreasonable impact on the topography, rock formations or vegetation. The proposal will enable visual lines of site and is considered consistent with this clause.

Yes

6.5 Gross floor area of dwellings in residential zones

≤ 630sqm = Site area × 0.55

The proposal will not alter the Gross Floor Area for the site.

Yes

 

Draft Georges River Local Environmental Plan 2020

57.      Consideration is given to the provisions of Draft Georges River Local Environmental Plan 2020 in the assessment this application.

 

58.      In this regard, the provisions have no determining weight as a result of proposed operation of Clause “1.8A Savings provisions relating to development applications” of the Draft Plan which provides “If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced.”

 

59.      The proposal remains within the R2 Low Density Residential zone under the provisions of the Draft Georges River LEP 2020.

 

DEVELOPMENT CONTROL PLAN

60.      The proposed development is subject to the provisions of the Hurstville Development Control Plan No1 (DCP). The following comments are made with respect to the proposal satisfying the objectives and controls contained within the DCP. As a majority of the controls relate to dwelling houses, only the relevant controls relating to the proposed use are assessed below.

 

61.      It is acknowledged that though the pool is acting as a fish pond, the application has been assessed as though the structure is a pool as it could be returned to a swimming pool at any time. Discussions between Council staff and the owner have provided clarity on the use of the proposed deck. The proposed development is proposed to be used by the owners to maintain the pond and sit and appreciate the fish. This is not inconsistent with the way in which pools are use. Therefore the controls for pools have been used as part of the assessment.

 

Section

Standard

Proposed

Complies

PC5. Views

No design solution is provided and each development application will be assessed on its individual merits

Due to the topography of the site there is no unreasonable impact on views.

Yes

PC10.

Landscaping

DS10.1

Where located inside the FSPA, a minimum of 25% of site area is landscaped open space.

The proposed development has 29.84% of the site area as landscaped open space.

 

Yes

DS10.3

The minimum dimension of landscaped open space is 2m in any direction.

The minimum dimensions included in the calculation of the landscaped open space are 2m.

Yes

DS10.4

A minimum of 15sqm of the landscaped open space is provided between the front setback and the street boundary in the form of a front yard.

The landscaped setback within the frontage of the site exceeds 15sqm.

Yes

DS10.5

An area of Principal Private Open Space is to be provided which:

a.   has a minimum area of 30sqm

b.   has a minimum dimension of 5m

c.   is located at ground level and behind the front wall of the dwelling

d.   is directly accessible from a main living area

The proposed development includes private open space in excess of 30sqm and is compliant with this control.

Yes

5.6 Swimming Pools – PC2 Landscaping

DS2.1

Tree and shrub planting is to be provided along the adjoining property boundary lines to achieve a reasonable level of privacy.  Refer to Appendix 1 for recommended species to use.

The application is proposing to add planting to the northern and western boundaries between the pool and the fence.

Yes

 

Objectives

62.      The objectives of Part 5.6 – Swimming Pools state the following:

 

·    Ensure all swimming pools do not adversely affect the amenity of the locality by their location, visual appearance, size or operation. 

 

63.      It is acknowledged that currently the pool is being used as a fish pond however the way in which the deck is proposed to be used is consistent with a pool deck which is for maintenance and amenity for the owners. The pond is also capable of transitioning back into a pool. The proposal is for ancillary structures associated with a pool and therefore these objectives are applicable.

 

64.      The plans that have been provided do not demonstrate that there will be an acceptable level of amenity impacts in relation to the visual appearance and size. Landscaping has been provided that will soften the appearance of the deck. However as the setbacks are inconsistent on the plans with that on site and given that it is an elevated structure in line with the top of the boundary fences the accuracy of the setbacks is necessary to review and consider the resultant amenity impacts and how they could be ameliorated.

 

65.      The visual appearance will also be dominated by privacy screens. As the setbacks are unknown the extent of the bulk that they will cause is not able to be accurately determined. As a result compliance with these objectives cannot be established.

 

PROVISIONS OF ENVIRONMENTAL PLANNING & ASSESSMENT REGULATION 2000

66.      The provisions of the Environmental Planning & Assessment Regulation 2000 relating to this application have been taken into consideration during this assessment and have been discussed specifically throughout this report.

 

67.      In particular, in Schedule 1 (Forms) of the EP&A Regulation 2000, clause 2 prescribes the “Documents to accompany (a) Development Application”. This clause requires a development application to include a site plan and a sketch of the development. Implicit in this requirement is for these drawings to be accurate in terms of the existing features of the site (in this instance – the setbacks of the existing swimming pool); as well as the contours and levels of the site.

 

68.      The plans submitted with the DA do not accurately depict these existing site features.  With the amount and nature of the inaccuracies in the plans in terms of side/rear boundary setbacks and site levels, the submitted DA plans cannot be relied upon to undertake a full and proper assessment of the DA, nor could they be relied upon in any potential development consent to be issued by Council, as there would be no certainty as to the finished built form outcome.

 

69.      Council Officers have provided the applicant with opportunities to address these issues throughout the assessment of this DA; however the applicant has not been able to provide plans with the required level of accuracy for assessment purposes.

 

(iii)  the regulations (to the extent that they prescribe matters for the purposes of this paragraph),

 

70.      As stated above, the DA as currently submitted is not satisfactory in terms of the DA plan submission requirements under the Environmental Planning & Assessment Regulation 2000 (Schedule 1 – Forms).

 

IMPACTS

71.      It is considered that due to the lack of clarity that the plans provide the impacts of the development are unable to be determined. Given that the proposal is regarding a raised deck close to the boundary, the setbacks may affect the privacy of adjoining neighbours.

The proposal is unable to be adequately assessed in relation to any built environmental and social impacts without a set of accurate plans. As the impact against this assessment criterion cannot be determined the proposal is currently not considered supportable.

 

Suitability of the Site

72.      As discussed throughout this report, the plans submitted are inconsistent and do not demonstrate the site is suitable for the development.

 

SUBMISSIONS

73.      The proposal as modified has been notified in accordance with the provision of Hurstville Development Control Plan 1 and Council’s Community Engagement and Participation Plan and one (1) submission was received. The issues of concern in the submission have been summarised and discussed below.

 

Concerns regarding external appearance of the underside of the deck

74.      The submission raises concerns regarding the unsightly view under the deck and recommends screening or planting. The submission also requests more planting is required, questioned how the planting will be able to be maintained and how excess water coming from the bedrock will be dealt with.

 

75.      Officer Comment: As the setbacks nominated are inconsistent with what exists on site the Assessing Officer is unable to accurately determine the amount of deck that will be seen from this property. Irrespective of the plans, the planting is considered to be sufficient and is capable of being conditioned to be maintained, should it be supported. If this landscaping is not maintained than it would be a breach of development consent, and Council has enforcement powers to take action in relation to any such breach of consent.

 

PUBLIC INTEREST

76.      The inconsistencies in the plans, especially the setbacks do not demonstrate that there will be minimal impacts on surrounding properties. The lack of clarity around the setbacks and heights does not allow for impacts around privacy and amenity to be assessed. The proposal as amended is considered to have unreasonable impacts on the surrounding properties. Therefore, the proposal is not in the public interest.

 

REFERRALS

Consulting Arborist

77.      The application was referred to Council’s Consulting Arborist who raised no objection with the proposal subject to recommended conditions in relation to the trees to be planted and the tree to be maintained (Cedar) on the neighbouring property, and the completion of these works.

 

CONCLUSION

78.      The application has been assessed having regard to Evaluation under Section 4.15 (1) of the Environmental Planning and Assessment Act 1979, the provisions of the applicable State Environmental Planning Polices, Hurstville Local Environmental Plan 2012 and Hurstville Development Control Plan 1.

 

79.      Following a detailed assessment it is considered that Development Application No. DA2019/0645 should be refused for the following reasons.

 

DETERMINATION AND STATEMENT OF REASONS

80.      Statement of Reasons

·      The proposal, has not adequately demonstrated compliance with the Hurstville Local Environmental Plan and the Hurstville Development Control Plan No.1.

 

·      The plans that have been submitted with the current development application are not capable of being built having regard to the annotated dimensions.

 

·      The proposed development, does not demonstrate that there will be no unreasonable impacts upon the built environment and amenity of the neighbourhood.

 

Determination

81.      That pursuant to Section 4.16(1)(b) of the Environmental Planning and Assessment Act 1979, the Georges River Local Planning Panel refuse DA2019/0645 for the construction of decking, stairs, retaining walls, privacy screening and the planting of vegetation to address privacy and overlooking from the new decking at Lot 8; Section 2; DP 237428 and known as 14 Maple Street, Lugarno, for the following reasons:

 

1.    Environmental Planning Instrument - Pursuant to Section 4.15 (1)(a)(i) of the Environmental Planning and Assessment Act 1979, the proposed development does not comply with the following sections of Hurstville Local Environmental Plan 2012:

 

(a)     Clause 2.3 - Zone Objectives and Land Use Table (R2 Low Density Residential) - In particular, the development does not contain sufficient information to enable full and proper assessment of the development - to ensure that a high level of amenity is achieved and maintained; and also the development does not encourage greater visual amenity through maintaining and enhancing existing landscaping as a major element in the residential environment.

 

2.    Impact on the Environment – Pursuant to Section 4.15 (1)(b) of the Environmental Planning and Assessment Act 1979, the proposed development is likely to have an adverse impact on the following aspects of the environment:

 

(a) Built Environment: Unable to assess if the impact would be adverse and result in adverse impacts to the amenity of adjoining premises;

(b) Social Impacts: Unable to assess if the impact would be adverse and result in adverse impacts to the amenity of adjoining premises.

 

3.    Suitability of the Site – Pursuant to Section 4.15 (1)(c) of the Environmental Planning and Assessment Act 1979, the proposed development does not demonstrate that the proposed development is suitable for the site or its locality.

 

4.    Pursuant to the provisions of the Environmental Planning & Assessment Regulation 2000 (Schedule 1 – Forms), the documentation submitted with the development application does not comply with the requirements of “Documents to accompany development application” in Part 1, Clause 2.

 

In particular, the plans submitted with the development application are not accurate in terms of the ground levels depicted on the plans which are not reflective of what exists on site.

 

5.    Development Control Plan - Pursuant to Section 4.15 (1)(a)(iii) of the Environmental Planning and Assessment Act 1979, the proposed development does not comply with the following sections of Hurstville Development Control Plan No. 1:

 

(a)     5.6 – Swimming Pools and Spas. In particular, the development does not contain sufficient information to enable assessment to be made in terms of the requirements of Clause 5.6.2, Purpose of this Chapter – to ensure that all swimming pools do not adversely affect the amenity of the locality by their location, visual appearance, size or operation.

 

6.    The Public Interest – Pursuant to Section 4.15 (1)(e) of the Environmental Planning and Assessment Act 1979, the proposed development is not considered to be in the public interest and is likely to set an undesirable precedent.

 

Review of Determination - Section 8.2 of the Environmental Planning and Assessment Act confers on an applicant who is dissatisfied with the determination of the application the right to lodge an application with Council for a review of such determination.  Any such review must however be completed within 6 months from its determination.  Should a review be contemplated sufficient time should be allowed for Council to undertake public notification and other processes involved in the review of the determination.

 

Note: Review provisions do not apply to Complying Development, Designated Development, State Significant Development, Integrated Development or any application determined by the Sydney South Planning Panel or the Land & Environment Court.

 

Appeal Rights - Part 8 (Reviews and appeals) of the Environmental Planning and Assessment Act 1979 confers on an applicant who is dissatisfied with the determination of the application a right of appeal to the Land and Environment Court of New South Wales.

 

 

 

ATTACHMENTS

Attachment 1

Annotated Plans - 14 Maple St Lugarno

Attachment 2

Amended Plans - 14 Maple St Lugarno

 


Georges River Council - Georges River Local Planning Panel (LPP) - Thursday, 15 October 2020

LPP050-20              14 Maple Street Lugarno

[Appendix 1]          Annotated Plans - 14 Maple St Lugarno

 

 

Page 76

 


 


Georges River Council - Georges River Local Planning Panel (LPP) - Thursday, 15 October 2020

LPP050-20              14 Maple Street Lugarno

[Appendix 2]          Amended Plans - 14 Maple St Lugarno

 

 

Page 78

 


 


 


Georges River Council – Local Planning Panel   Thursday, 15 October 2020

Page 81

 

REPORT TO GEORGES RIVER COUNCIL

LPP MEETING OF Thursday, 15 October 2020

 

LPP Report No

LPP051-20

Development Application No

MOD2020/0084

Site Address & Ward Locality

27-33 Nielson Avenue Carlton

Kogarah Bay Ward

Proposed Development

Section 4.55(2) modification to an approved Residential Flat Building to provide an one (1) additional studio apartment on the fourth floor

Owners

Mandi Abboud and Katherine Khalil

Applicant

Jane Abboud

Planner/Architect

Planner: Devlin Planning  Architect: Loucas Architects

Date Of Lodgement

14/05/2020

Submissions

One (1) submission received

Cost of Works

$10,778,669.00 (cost of original development)

Local Planning Panel Criteria

Section 4.55(2) Major modification to an approved residential flat building

List of all relevant s.4.15 matters (formerly s79C(1)(a))

Environmental Planning and Assessment Act 1979, Environmental Planning and Assessment Regulation 2000, Greater Metropolitan Regional Environmental Plan No 2 – Georges River Catchment, State Environment Planning Policy No 55 – Remediation of Land,

State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development, State Environmental Planning Policy – BASIX 2004, Draft Remediation of Land SEPP,

Draft Georges River Local Environmental Plan 2020, Kogarah Local Environmental Plan 2012, Kogarah Development Control Plan 2013, Interim Policy Georges River Development Control Plan 2019

List all documents submitted with this report for the Panel’s consideration

Architectural Plans, Statement of Environmental Effects, Justification for Height of Building

 

 

 

Report prepared by

Senior Development Assessment Officer

 

 

Recommendation

THAT the application be approved in accordance with the conditions referenced at the end of this report.

 

Summary of matters for consideration under Section 4.15

Have all recommendations in relation to relevant s4.15 matters been summarised in the Executive Summary of the assessment report?

 

Yes 

Legislative clauses requiring consent authority satisfaction

Have relevant clauses in all applicable environmental planning instruments where the consent authority must be satisfied about a particular matter been listed and relevant recommendations summarised, in the Executive Summary of the assessment report?

 

Yes

Clause 4.6 Exceptions to development standards

If a written request for a contravention to a development standard (clause 4.6 of the LEP) has been received, has it been attached to the assessment report?

 

No as the application is a modification, a merit request for a variation to Clause 4.3 Height of Building of the Kogarah Local Environmental Plan 2012 has been provided.

Special Infrastructure Contributions

Does the DA require Special Infrastructure Contributions conditions (under s7.24)?

 

Not Applicable

Conditions

Have draft conditions been provided to the applicant for comment?

 

No, as the conditions can be viewed when the report is published

 

Site Plan

Figure 1: Aerial extract of subject site (27-33 Nielson Avenue, Carlton) outlined in blue (Source: Georges River Council Intramaps, 2020)

 

Executive Summary

 

Proposal

1.         Council is in receipt of a Section 4.55(2) modification to modify Development Consent DA2016/0212 which seeks to provide an additional studio unit on the fourth floor to an approved residential flat building on land known as 27-33 Nielson Avenue, Carlton.

 

2.         It is noted that this modification originally sought consent for one (1) x one (1) bedroom unit on the fourth floor. The application has been amended seeking consent for one (1) studio unit which adopts a smaller apartment size than that originally proposed. The studio comprises of an open plan living/dining, kitchen, bedroom nook, bathroom, laundry and balcony.

 

3.         Development consent DA2016/0212 forming, the parent application sought consent for the demolition of the existing dwellings and construction of a five (5) storey residential flat building comprising forty (40) units with basement parking. Development consent was granted by the Georges River Local Planning Panel on 19 April 2018, which resulted in the deletion of a unit on the fourth floor to comply with the height of building control.

 

4.         A section 4.55(2) modification MOD2018/0085 was refused by the Local Planning Panel on 18 December 2018. MOD2018/0085 sought to provide an additional one (1) bedroom apartment (Unit 4.02) on the fourth floor of the approved residential flat building, which sought to exceed the height control by 275mm being 1.8%. The proposal also involved the alteration of the rooftop communal open space area.

 

5.         The modification was refused for the following reasons;

 

1.    Pursuant to sections 4.55(3) and 4.15(1)(i) the Panel is not satisfied with the proposed modification having regard to the exceedance of the height standard prescribed by Clause 4.3 of the Kogarah Local Environmental Plan 2012 without adequate justification why the building cannot comply with the standard.

 

2.    Pursuant to sections 4.55(3) and 4.15(1)(i) the Panel is not satisfied with the proposed modification in relation to the configuration and amenity of proposed Unit 4.02 with regard to the provisions of State Environmental Planning Policy No 65 and Apartment Design Guide.

 

6.         This modification (current application MOD2020/0084) originally sought the same extent of works as that previously proposed within MOD2018/0085.

 

7.         Clause 4.3 Height of Building of the Kogarah Local Environmental Plan 2012 prescribes a height of 15m. The maximum height of the building proposed for this modification is 15.225m which is located above the living room of the proposed unit.

 

8.         The modification proposal did not comply with the non-habitable minimum floor to ceiling height of 2.4m within the Apartment Design Guide (ADG) Objective 4C of the Apartment Design Guide of State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development.

 

9.         The applicant was advised that Council Officers raised concerns regarding the non-compliant floor to ceiling heights within the non-habitable rooms being the laundry, bathroom and wardrobe of the proposed unit resulting in reduced occupant amenity.

 

10.      The applicant has provided an amended proposal which proposes a studio unit by reducing the size of this unit along the north-east elevation which adjoins the communal rooftop open space. The amended proposal now complies with the Apartment Design Guide criterion.

 

11.      The modification has provided adequate justification in a format similar to a Clause 4.6 exception to Development Standard in relation to the exceedance to height of building to the Kogarah Local Environmental Plan 2012.

 

12.      The modification was notified in accordance with Council’s Development Control Plan. In response, one (1) submission was received. The amended proposal incorporates a studio unit and did not require re-notification as the size of the unit was reduced in size.

 

Site and Locality

13.      The subject site is 27-33 Nielson Avenue, Carlton (Lots 23 – 26 in DP 5452) located on the north western side of Neilson Avenue.

 

14.      The site has a total site area of 2,054.4sqm, with a site frontage of 73.152m, and a depth of 28.245m.

 

15.      The land slopes down gradually towards Nielson Avenue by approximately 1.2m.

 

16.      Existing on each of the allotments are single storey dwelling houses with associated outbuildings.

 

17.      The development site is adjoined to the sides and across the road by single storey dwellings, and to the rear by residential flat buildings.

 

18.      Demolition and construction of the approved residential flat building has not commenced.

 

19.      The subject site is adjoined by dwellings along Neilson Avenue and residential flat buildings to the rear. Opposite the site are dwelling houses of varying architectural styles and designs.

 

Zoning and Permissibility

20.      The subject site is zoned R3 Medium Density Residential, with the immediate adjoining land zoned R3 Medium Density Residential. The land on the southern side of Nielson Avenue is zoned R2 Low Density Residential.

 

Figure 2: Zoning Extract of subject site (27-33 Neilson Avenue, Carlton) outlined in blue (Source: Georges River Council Intramaps, 2020).

 

21.      Residential Flat Buildings are permitted with consent in the R3 Medium Density Residential zone as outlined in the Kogarah Local Environmental Plan 2012 (KLEP).

 

22.      The Kogarah Development Control Plan 2013 (KDCP) provides detailed provisions to guide development in achieving the objectives of the KLEP, providing detailed controls and objectives for residential and commercial development. The proposed modification complies with the relevant clauses of the KDCP.

 

Level of Determination

23.      The application is referred to the Local Planning Panel for determination as the proposal relates a Section 4.55(2) modification associated with a residential flat building which is subject to the provisions of State Environmental Planning Policy No. 65 – Design Quality of Residential Flat Development, as outlined in Schedule 1, 4(b) of the Local Planning Panels Directions – Development Applications dated 23 February 2018.

 

Submissions

24.      The modification was notified to ­­adjoining neighbours for a period of 14 days between 1 and 16 June 2020. In response, one (1) submission was received which raised concerns regarding excavation and impacts on adjoining properties. The amended proposal to alter the proposal from a one (1) bedroom unit to a studio unit did not require re-notification as the size of the unit was reduced in size.

 

25.      The modification does not seek any changes to the approval in relation to excavation as the extent of work relates to the addition of a studio unit on the fourth floor. Conditions relating to excavation approved under DA2016/212 remain unchanged and are part of the recommendation for approval of this modification.

 

Conclusion

26.      Having regard to the matters for consideration under Part 4.15, and 4.55(2) Modifications of Consents of the Environmental Planning and Assessment Act 1979, Modification Application No. MOD2018/0085 which seeks to provide an additional studio unit on the fourth floor to an approved residential flat building is recommended for approval subject to modified conditions to consent.

 

Report in Full

Proposal

27.      Council is in receipt of a Section 4.55(2) modification application to modify Development Consent DA2016/0212, to add an additional one (1) bedroom unit to the fourth floor to an approved residential flat building.

 

28.      It is noted that this modification original sought consent for one (1) x one (1) bedroom unit on the fourth floor. The modification has been amended which seeks consent for one (1) studio unit which adopts a smaller apartment size than that originally proposed. The studio comprises of an open plan living/dining, kitchen, bedroom nook, bathroom, laundry and balcony.

 

29.      Development consent DA2016/0212 (parent application) sought consent for the demolition of the existing dwellings and construction of a five (5) storey residential flat building comprising forty (40) units and basement parking. Development consent was granted by the Georges River Local Planning Panel on 19 April 2018 which resulted in the deletion of a unit on the forth floor to comply with the height of building control.

 

30.      The proposal is an application under Section 4.55(2) to modify the Development Consent DA2016/0212 (originally a Kogarah Council application), to add an additional unit to a residential flat building, as shown on the elevation below (clouded in red).

 

Figure 3: Proposed south east elevation with the proposed studio located behind the lift overrun circled in blue (Source: Loucas Architects, 2020).

 

31.      The modification seeks to provide an additional studio unit (Unit 4.02) on the fourth floor of the approved residential flat building, which will exceed the height control by 275mm being 1.8%.

 

32.      To accommodate the new studio unit, the proposal also involves the alteration of the rooftop communal open space area; which will remain compliant with the communal open space criterion for residents as referenced in the Apartment Design Guide (ADG).

 

Site and Locality

33.      The subject site is located at 27 - 33 Nielson Avenue Carlton (Lots 23 – 26 in DP 5452) on the north western side of the road.

 

34.      The site forms a rectangular shaped allotment has a total site area of 2,054.4sqm, with a site frontage of 73.152m, and a depth of 28.245m.

 

35.      The land slopes down gradually towards Nielson Avenue by approximately 1.2m.

 

36.      Demolition of the existing buildings and the construction of the approved residential flat building has not commenced. Existing on the sites are single storey dwelling houses with associated outbuildings, as shown in the photos below.

 

Figure 4: Photograph of subject site (Source: Georges River Council, September 2020).

 

Figure 5: Photograph of subject site (Source: Georges River Council, September 2020).

 

37.      The subject site is adjoined by dwellings along Neilson Avenue and residential flat buildings to the rear. Opposite the site are dwelling houses of varying architectural styles and designs.

 

Background

38.      Development Application DA2016/0212 initially proposed a residential flat building as shown in the elevation below.

 

Figure 6: Originally proposed elevation (Source: Architecture and Building Works).

 

39.      On 19 December 2017 the Local Planning Panel (formally known as IHAP) at its meeting on 19 December 2017 considered development application DA2016/0212. The height control was breached as annotated above by the red line. The Panel resolved to defer the application seeking amended plans to:

 

-      Comply with the height controls - proposed units 401 and 402 may need to be deleted.

 

40.      Revised plans were provided to address the deferral reasons of the Panel, showing the deletion of a unit.

 

Figure 7: Approved north-west (rear) elevation (Source: Architecture and Building Works).

 

41.      On 19 April 2018 DA2016/0212 was granted consent by the LPP for demolition of existing dwellings and the construction of a five (5) storey residential flat building comprising forty (40) units and basement parking, as shown above.

 

42.      A section 4.55(2) modification MOD2018/0085 was refused by the Local Planning Panel on 18 December 2018. MOD2018/0085 sought to provide an additional one (1) bedroom apartment (Unit 4.02) on the fourth floor of the approved residential flat building, which sought to exceed the height control by 275mm being 1.8%. The proposal also involved the alteration of the rooftop communal open space area.

 

43.      The modification was refused for the following reasons:

 

1.    Pursuant to sections 4.55(3) and 4.15(1)(i) the Panel is not satisfied with the proposed modification having regard to the exceedance of the height standard prescribed by Clause 4.3 of the Kogarah Local Environmental Plan 2012 without adequate justification why the building cannot comply with the standard.

 

2.    Pursuant to sections 4.55(3) and 4.15(1)(i) the Panel is not satisfied with the proposed modification in relation to the configuration and amenity of proposed Unit 4.02 with regard to the provisions of State Environmental Planning Policy No 65 and Apartment Design Guide.

 

44.      The applicant has provided an amended proposal which proposes a studio unit which has been achieved by reducing the size of the former one (1) bedroom unit along the north east elevation which adjoins the communal rooftop open space. The amended proposal now complies with the Apartment Design Guide criterion in relation to floor to ceiling heights therefore resulting in good levels of occupant amenity.

 

Compliance and Assessment

45.      The development has been assessed having regarding to Matters for Consideration under Section 4.15(1) of the Environmental Planning and Assessment Act 1979.

 

Section 4.15 Evaluation

46.      The following is an assessment of the application with regard to Section 4.15(1) Evaluation of the Environmental Planning and Assessment Act 1979.

 

(1)  Matters for consideration - general

In determining an application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

 

The provision of:

(i)    Any environmental planning instrument,

 

ENVIRONMENTAL PLANNING AND ASSESSMENT ACT 1979

Section 4.55(2) of the Environmental Planning and Assessment Act

47.      The proposal has been lodged under the relevant Section 4.55(2) of the Act and has been assessed against the following matters for consideration under this section of the Act.

 

“4.55(2) Modification of consents – other modifications

 

A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if:

 

(a)   it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and

 

48.      Comment: It is considered this Section 4.55(2) modification is substantially the same development as the development approved, as this application is seeking to include an additional unit on the fourth floor to an approved residential flat building. In consideration with the above;

 

-      The modification seeks to retain the approved use as a residential flat building;

-      The modification seeks one (1) additional studio unit to the existing forty (40) units approved; and

-      The modification will generally retain the approved built form of a five (5) storey residential flat building.

 

49.      On this basis, it is considered that the modification is quantitative and qualitatively the same and as the original consent.

 

(c)   it has notified the application in accordance with:

 

(i)      the regulations, if the regulations so require, or

(ii)     a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

 

50.      Comment: The application was notified in accordance with the Kogarah DCP 2013, in response, one (1) submission was received. The amended proposal did not require re-notification as this did not generate a greater impact than that of the original design sought in this modification.

 

(d)   it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be.”

 

51.      Comment: The concerns raised within the one (1) submission received have been addressed in detail later in this report.

 

(3)   In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15 (1) as are of relevance to the development the subject of the application.

 

The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified.

 

52.      Comment: Section 4.15(1) matters have been considered below.

 

STATE ENVIRONMENTAL PLANNING INSTRUMENTS

53.      Compliance with the relevant State Environmental Planning Policies (SEPP) is detailed below.

 

54.      The following Environmental Planning Instruments are relevant to this application:

·      Greater Metropolitan Regional Environmental Plan No 2 – Georges River Catchment;

·      State Environmental Planning Policy No 55 - Remediation of Land;

·      State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development;

·      State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004;

·      Draft Environment State Environmental Planning Policy;

·      Draft Remediation of Land SEPP;

·      Draft Georges River Local Environmental Plan 2020

·      Kogarah Local Environmental Plan 2012;

·      Kogarah Development Control Plan 2013; and

·      Interim Policy Georges River Development Control Plan 2019

 

55.      An assessment has been undertaken having regard to the relevant State Environmental Planning Policies is detailed below:

 

DEEMED STATE ENVIRONMENTAL PLANNING POLICY – GEORGES RIVER CATCHMENT

56.      All stormwater from the proposed development can be treated in accordance with Council’s Water Management Policy and would satisfy the relevant provisions of the Deemed State Environmental Planning Policy – Georges River Catchment and the original engineering conditions of consent. No changes to the approved stormwater design are required as a result of change in the roof design as the works are located within the approved building footprint, therefore there is not additional roof area.

 

STATE ENVIRONMENTAL PLANNING POLICY NO 55 – REMEDIATION OF LAND

57.      The approved development was for construction of one residential unit over an existing structure. This application seeks approval for alterations, accordingly, there are no earthworks proposed.

 

58.      Based on Council’s records, the subject site has been used for residential purposes and has not been used for any potentially contaminating activities.  As such, it is considered unlikely that the land is contaminated.

 

STATE ENVIRONMENTAL PLANNING POLICY NO 65 — DESIGN QUALITY OF RESIDENTIAL APARTMENT DEVELOPMENT

59.      The extent to which the proposed development complies with the controls and principles in the State Environmental Planning Policy 65 – Design Quality of Residential Apartment Development (SEPP 65) and the Apartment Design Guide (ADG) is detailed and discussed in the tables below.

 

Application of SEPP 65

Clause

Standard

Proposal

Complies

3 - Definitions

Complies with definition of “Residential Apartment Development” (RAD)

The proposal complies with this definition.

Yes

4 - Application of Policy

Development involves the erection of a new RFB, substantial redevelopment or refurbishment of a RFB or conversion of an existing building into a RFB

This is a modification of an approval for the erection of a new residential flat building.

Yes

50 – Development Applications

Design verification statement provided by qualified designer

 

Registered Architect Name and Registration No.

Design Verification Statement provided by Registered Architect Mr Jim Apostolou (Registration No.7490)

Yes

         

60.      Clause 29 states that modifications applications require advice from the Design Review Panel (DRP) as to whether the modifications diminish or detract from the design quality, or compromise the design intent, of the development for which the consent was granted.

 

61.      The original proposal was referred to the Design Review Panel (DRP) on 1 December 2016 and the Panel supported the DA. The elevation below shows the extent of bulk above the maximum height line (red line) and the approximate location of the subject proposed unit (red oval).  

 

Figure 9: Previously proposed north west (rear) elevation (Source: Architecture and Building Works).

 

62.      Given that the unit was previously considered by the DRP, who supported this aspect of the original DA. The applicant has amended the proposal from a one (1) bedroom unit to a studio to achieve compliant floor to ceiling heights in accordance with the AGD.

 

63.      The proposed modification has been reviewed having regard to the Principles of this State Environmental Planning Policy, comments are provided below.

 

Clause

Council’s comments

Complies

1 – Context and neighbourhood character

The proposed additional unit will not significantly alter the overall design of the approved building which was previously assessed as being in context with the surrounding area.

Yes

2 – Built form and scale

The approved residential flat building is located in an area undergoing change and therefore is compatible with the future character of the area given the uplift presently being experienced.

Yes

3 - Density

The proposal complies with the Floor Space Ratio control as outlined above.

Yes

4 – Sustainability

The applicant has provided a solar access and natural ventilation plan which shows the proposed unit will receive 2 hours of sunlight to the main living room and balcony mid-winter, and is cross ventilation, the proposal is considered acceptable.

Yes

5 - Landscape

This design principle is not applicable to the subject modification as the landscaped area remains compliant.

Yes

6 - Amenity

The amended proposal which forms a studio unit achieves compliant levels of amenity in accordance with the AGD. The reduction in size of this unit has resulted in compliant floor to ceiling heights being achieved.

Yes

7 – Safety

This design principle is not applicable to the subject modification proposal.

Yes

8 – Housing diversity and social interaction

The proposal will increase the number of 1 bedroom units, the mix is as follows:

 

41 units in total

1 x studio (2.43%)

7 x 1 bedroom (17.07%) 

31 x 2 bedroom (75.6%)

2 x 3 bedroom (4.87%)

 

The proposal involves reducing the communal open space area to accommodate the proposed unit. The ADG tool 3D-1 states that communal open space is to be 25% of the site, which is 513.6sqm for the subject site. The result of the conditioning the one (1) bedroom unit to a studio thereby reducing the units footprint will result in a communal open space area of 537.29sqm which complies.

 

The landscape plan shows that the rooftop contains a variety of open space areas for future residents including a BBQ area and shade structure, seating in communal open space areas, children’s active play area with shade structure, and a sundeck area. The BBQ area has been slightly reduced in size to accommodate the proposed unit, which is acceptable as it remains functional.

Yes

9 - Aesthetics

It is considered the proposed addition adopts a design which is compatible with the remainder of the approved residential flat building.

Yes

 

Clause 30 – Consideration of Apartment Design Guide

64.      An assessment has been undertaken based on the amended proposal being a studio unit.

 

Clause

Standard

Proposal

Complies

2E – Building depth

12-18m

 

9m

Yes

3D-Communal and Public Open Space

 

 

1. Communal open space has a minimum area equal to 25% of the site.

- Where it cannot be provided on ground level it should be provided on a podium or roof.

 

The communal open space is to be a minimum of 25% of the site, which equates to 513.6sqm for the subject site.

 

Where developments are unable to achieve the design criteria, such as on small lots, sites within business zones, or in a dense urban area, they should:

• provide communal spaces elsewhere such as a landscaped roof top terrace or a common room

• provide larger balconies or increased private open space for apartments

• demonstrate good proximity to public open space and facilities and/or provide contributions to public open space

 

2. Developments achieve a minimum of 50% direct

sunlight to the principal usable part of the communal open space for a minimum of 2 hours between 9 am and 3 pm on 21 June (mid-winter)

The proposal involves reducing the rooftop communal open space area to accommodate the proposed unit. The amended proposal incorporating the studio unit results in communal open space of 536.29sqm which complies. 398sqm of usable communal space is proposed on the communal rooftop (which excludes planters) with the remainder located within the front setback.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The communal open space is located on the rooftop which receives complaint levels of solar access given its location.

 

Yes

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Yes

3E- Deep Soil Zones

 

 

1. Deep soil zones are to meet the following minimum

requirements:

 

-    Where site area is between 650sqm and 1500sqm = 3m minimum dimension

 

Deep soil = 7%

The proposal does not change the location of deep soil landscaping approved under the DA as the extent of modification works are located within the approved building footprint.

Yes

 

 

 

 

 

 

 

3F- Visual Privacy

1. Separation between windows and balconies is provided to ensure visual privacy is achieved.

 

Minimum required separation distances from buildings to the side and rear boundaries are as follows:

 

Over 12m (5-8 storeys)

Habitable rooms and balconies = 9m (18m separation distance)

 

 

 

 

 

 

 

 

 

 

 

 

 

The distance between the proposed unit habitable rooms and the studio unit of the building to the north west is more than 18.49m, which is more than the required separation of 9m.

 

 

 

 

 

 

 

 

 

 

 

 

 

Yes

 

3H-Vehicle Access

Vehicle access points are designed and located to achieve safety, minimise conflicts between pedestrians and vehicles and create high quality streetscapes

This element remains unaltered by this proposal.

Yes

3J- Access and parking

1. For development in the following locations:

 

On sites that are within 800m of a railway station or light rail stop in the Sydney Metropolitan Area;

 

- The minimum car parking requirement for residents and visitors is set out in the Guide to Traffic Generating

Developments, or the car parking requirement prescribed by the relevant Council, whichever is less

 

The car parking needs for a development must be provided off street

The site is located within 800m to Carlton Station being to the north west of the site. The subregional car parking rate under the Guide to Traffic Generating Development (GTTGD) Applies to the site. Additional car parking demand generated by the unit can be accommodated within the approved residential flat building which has a surplus of car parking spaces under the GTTGD.

Yes (1), refer to discussion below.

 

 

Car parking

The proposal seeks an additional studio unit). The site is located within 800m to Carlton Station being north-west of the site. The subregional car parking rate under the Guide to Traffic Generating Development (GTTGD) applies to the site.

 

During the original assessment of the application, the applicant demonstrated the car parking provided was in accordance with the provisions of the RMS Guide to Traffic Generating Developments’, the Panel accepted the parking provided. It is acknowledged this application is seeking an additional unit; however the parking provided exceeded the RMS requirements, therefore the additional 0.6 of a space required by the proposed studio unit can be accommodated within the development without the need for changes to the basement which is considered to be acceptable.

 

Conditions 49 and 50 state the following;

 

Condition 49 - Allocation of Car Parking Spaces - A minimum of 54 off street car parking spaces shall be constructed, drained, marked and maintained at all times in accordance with the approved plans. These spaces shall be allocated as follows:

 

a)    45 are to be allocated to the residential units.

b)    9 are to be allocated as visitor parking spaces.

 

Condition 50 - Residential Car Parking Spaces - A minimum of one (1) unrestricted car parking space shall be allocated to each residential unit.

 

Given that one additional unit is proposed, the additional car parking demand can be accommodated within the total number of approved car parking spaces being fifty four (54).

4A- Solar Access

Living rooms and private open spaces of at least 70% of apartments in a building receive a minimum of 2 hours direct sunlight between 9 am and 3 pm at mid-winter in the Sydney Metropolitan Area

 

A maximum of 15% of apartments in a building receive no direct sunlight between 9 am and 3 pm at mid-winter

The applicant has provided a solar access plan which shows that the proposed unit will receive 2 hours of sunlight to the main living room and balcony mid-winter which is considered to be acceptable.

 

Yes

 

 

 

 

 

 

 

 

 

 

 

 

4B- Natural Ventilation

At least 60% of apartments are naturally cross ventilated in the first nine storeys of the building.

 

Overall depth of a cross-over or cross-through

apartment does not exceed 18m, measured glass line to glass line

The applicant has provided a natural ventilation plan which demonstrates that the building complies. The proposed studio unit is a single north west aspect unit.

 

Yes

 

 

 

 

 

 

 

 

4C – Ceiling Heights

Measured from finished floor level to finished ceiling level, minimum ceiling heights are:

Habitable rooms  = 2.7m

Non-habitable rooms = 2.4m

Proposed unit:

Habitable rooms = 2.75m.

Non-habitable rooms = 2.4m.

Yes, refer to discussion below.

Ceiling heights

The Apartment Design Guide prescribes a minimum floor to ceiling height of 2.7m for habitable rooms and 2.4m for non-habitable rooms. An extract of the cross section has been provided below which demonstrates that the amended proposal being a studio unit now complies.

Figure 10:  Extract of cross section plan of proposed studio layout, with living/dining and bedroom nook located behind the bathroom (Source: Locus Architects, 2020).

4D-Apartment size and layout

Apartments are required to have the following

minimum internal areas:

 

Studio = 35sqm

 

 

The minimum internal areas include only one bathroom. Additional bathrooms increase the minimum internal area by 5sqm each

 

Every habitable room must have a window in an external wall with a total minimum glass area of not less than 10% of the floor area of the room. Daylight and air may not be borrowed from other rooms

 

 

 

 

 

 

The studio has an internal floor area of 46.45sqm.

 

There is one (1) bathroom proposed to service the proposed studio unit.

 

 

 

 

 

The window provided for each habitable room (living/dining and bedroom nook) has a glazed area satisfying this control.

 

 

 

 

 

 

Yes

 

 

Yes

 

 

 

 

 

 

 

Yes

 

4D-Apartment rooms, location and sizes

Habitable room depths are limited to a maximum of

2.5 x the ceiling height

 

In open plan layouts (where the living, dining and

kitchen are combined) the maximum habitable room depth is 8m from a window

The combined depth of the open plan living / dining/ kitchen area for the studio unit is 5.275m.

Yes

 

Living rooms or combined living/dining rooms have a

minimum width of:

- 3.6m for studio and 1 bedroom

The minimum width of the studio living/dining room is 4.96m.

 

Yes 

4E-Private Open Space and balconies

All apartments are required to have primary balconies as follows:

 

Studio 4sqm/no min depth

 

 

 

 

 

The area of the balcony for the studio unit is 9.9sqm with a minimum dimension of 2m, which is acceptable.

 

 

 

 

 

Yes

4F-Circulation spaces

The maximum number of apartments off a circulation

core on a single level is eight

There is a maximum of two (2) units off the circulation core on the fourth floor.

Yes

 

4G- Storage

In addition to storage in kitchens, bathrooms and

bedrooms, the following storage is provided:

 

1 bedroom - 4m³

 

 

50% of storage to be located within basement

 

 

 

 

 

 

 

 

More than 2m³ storage within the studio unit.

 

2m³ for this additional unit can be provided in the basement levels given the approved basement footprints.

Yes

4K – Apartment Mix

A variety of apartment types is provided

The proposal will contribute to the diversity of the apartment composition as follows;

 

1 x  studio

7 x 1 bedroom

31 x 2 bedrooms

2 x 3 bedrooms

Yes

 

 

4M - Facades

Facades should be well resolved with an appropriate scale and proportion to the streetscape and human scale.

The façade is well articulated and varied through the use of different materials and finishes, as approved which will be continued and incorporated into the additional studio unit.

Yes

4N- Roof Design

Roof treatments are integrated into the building design and positively respond to the street.

 

Opportunities to use roof space for residential accommodation and open space are maximised. Incorporates sustainability features.

The proposed unit integrates well into the overall design of the approved residential flat building.

 

 

Yes

4O-Landscape Design

Landscape design is viable and sustainable, contributes to the streetscape and amenity

The amended proposal results in good levels of landscape within the communal open space areas.

Yes

4P-Planting on structures

Planting on structures – appropriate soil profiles are provided, plant growth is optimised with appropriate selection and maintenance, contributes to the quality and amenity of communal and public open spaces.

The landscape design approved as per the parent DA remains unaltered by this modification with the exception of a reduction in the communal open space on the fourth floor, it is noted the remains compliant and incorporates planters.

Yes

4Q-Universal Design

Universal design – design of apartments allow for flexible housing, adaptable designs, accommodate a range of lifestyle needs

Design and mix of apartments allows for different occupants with a range of lifestyle needs. Lift access is provided to this unit.

Yes

4R-Adaptive Reuse

Adaptive reuse as apartment of existing buildings- new additions are contemporary and complementary, provide residential amenity while not precluding future adaptive reuse

The development is a new development; it is not the adaptive reuse of a building.

Yes

4U- Energy Efficiency

Development incorporates passive environmental design, passive solar design to optimise heat storage in winter and reduce heat transfer in summer, natural ventilation minimises need for mechanical ventilation

The proposal incorporates a compliant BASIX Certificate, with the commitments in the design to provide appropriate energy efficiency features.

Yes

4W-Waste Management

Waste management – storage facilities are appropriately designed, domestic waste is minimised by convenient source separation and recycling

Waste facilities are provided which are accessible to all residents. There is a bin storage room in the basement which can cater for the additional unit.

Yes

4X-Building Maintenance

Building maintenance – building design provides protection form weathering, enables ease of maintenance, material selection reduces ongoing maintenance cost

The unit will comprise the same materials as approved in the parent DA.

Yes

 

65.      Therefore the proposal generally complies with State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development, the variations proposed are considered reasonable and worthy of support.

 

STATE ENVIRONMENTAL PLANNING POLICY (BUILDING SUSTAINABILITY INDEX: BASIX) 2004

66.      The applicant has provided BASIX Certificate No. 744521M_12 dated 1 October 2020 prepared by Max Brightwell which adequately satisfies the requirements of the SEPP. 

 

ENVIRONMENTAL PLANNING INSTRUMENTS

KOGARAH LOCAL ENVIRONMENTAL PLAN 2012

67.      The subject site is subject to provisions contained within the Kogarah Local Environmental Plan 2012.

 

68.      The development is subject to a range of clauses in Kogarah LEP 2012 which are summarised in the following table.

 

Clause

Standard

Proposed

Complies

4.3 - Height of Buildings

15m as identified on Height of Buildings Map

 

15.275m (max), exceeds the control by 275mm or 1.8% for the roof slab located above the proposed studio unit 4.02.

 

No, justification has been provided for the additional height of building; refer to discussion for additional height of building below.

4.4 - Floor Space Ratio

Site = 2,054.4sqm

 

1.5:1 as identified on Floor Space Ratio Map

 

Max = 3,081.6sqm

Proposed = 1.490:1

 

3,062.45sqm

 

Yes

 

69.      It is acknowledged that Clause 4.6 Exceptions to development standards does not apply to a modification application. Under the provision of the ‘matters for consideration’ a Clause 4.6 based assessment has been undertaken on this proposal, given the height variation and the supporting Clause 4.6 was not previously supported by the Panel.

 

70.      This assessment is to demonstrate the applicant has amended the proposal largely to address the reasons the Panel did not support the Clause 4.6 variation to Building Height, which resulted in the deletion of a unit from the proposal.

 

The objectives of Clause 4.6 are as follows:

 

(a)   to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b)   to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

 

71.      The following tests below are used to determine whether the standard should be varied:

 

Figure 11: Height of Building Map KLEP 2012 (Source: GRC Intramaps, 2020).

 

Consideration for additional Height of Building

 

Detailed assessment of variation to Clause 4.3 Height of Buildings

72.      The Kogarah LEP 2012 prescribes a maximum building height of 15m for this site.

 

73.      The proposal does not comply with the 15m height control of the Hurstville LEP 2012. The extent of the non-compliance, at the highest point being the above the proposed living room of the unit equates to 275mm or 1.8% above the 15m height limit for a length of 3.77m which is considered to not be out of character with recently approved developments. The extent of the breach is limited to the roof slab thickness.

      

Figure 12:  Extract of cross section of proposed studio unit (Source: Loucas Architects, 2020).

 

Figure 13: Height plane diagram indicating the extent of the proposed height breach circled in blue (Source: Loucas Architects, 2020).

 

74.      To support the non-compliance, the applicant has provided a request for a variation to Clause 4.3 in accordance with Clause 4.6 of Kogarah Local Environmental Plan 2012 (LEP) points have been extracted to justify the reasons to support the variation. This request for a variation is assessed as follows:

 

·     “The majority of the additional apartment is contained within the approved height of the development and where it exceeds the height standard it represents only a very minor variation.

 

·     The additional apartment complies with the required separation distances of the ADG does not result in any significant adverse amenity impacts, in terms of privacy, overshadowing, view loss or visual intrusion onto adjoining properties.

 

·      That portion of the development associated with the additional apartment that are non-compliant are minor elements that are not highly visible from the street and have been architecturally treated in a fashion that does not contribute adversely to the bulk and scale of the development”.

 

Is the planning control in question a development standard?

75.      Height of Buildings limitation under Clause 4.3 of the KLEP 2012 is a development standard.

 

What are the underlying objectives of the development standard?

76.      The objectives of Height of Buildings standard under Clause 4.3 of KLEP 2012 are:

 

(a)  to establish the maximum height for buildings,

(b)  to minimise the impact of overshadowing, visual impact and loss of privacy on   adjoining properties and open space areas,

(c)  to provide appropriate scale and intensity of development through height controls.

 

77.      The applicant has provided the following justification regarding the development’s consistency with the above objectives.

 

78.      Applicant’s Comments: The proposed development achieves the objectives of the standard notwithstanding non-compliance with the height of buildings control because:

 

·      the majority of the additional apartment is contained within the approved height of the development and where it projects beyond the approved roofline it has a maximum height of 15m which is compliant with the maximum height standard;

 

·      the additional apartment complies with the required separation distances of the Apartment Design Guide (ADG), and does not result in any significant adverse amenity impacts in terms of privacy, overshadowing, view loss or visual intrusion onto adjoining properties;

 

·      the proposed development is a high quality residential building that is well articulated using architectural elements, varied setbacks and materials to ensure that the development contributes positively to the streetscape and when viewed from surrounding lands and the public domain; and

 

·      that portion of the development associated with the additional apartment, lift overrun, stairwell and pergola that are non-compliant have been approved are relatively minor elements that are not highly visible from the street and have been architecturally treated in a fashion that does not contribute adversely to the bulk and scale of the development.

 

79.      Officer Comment: The applicant’s justification is supported. As shown in the section (Figures 12 and 13), the extent of the height variation relates to the roof slab of top of the proposed unit which is centrally sited within the building footprint. The proposed variation does not comprise of floor space or area which could be readily converted into floor space, it is merely the roof slab thickness.

 

80.      The height of the building results in minimal additional impacts of overshadowing or visual bulk, when compared to that of a numerically compliant building, the additional shadowing will fall to the south of the site and not impacting other developments given the topography of the land.

 

81.      Given the above, the proposed variation is considered to be consistent with the objectives of Clause 4.3, and is acceptable despite the numerical non-compliance.

 

What are the underlying objectives of the zone?

82.      The objectives of the R3 Medium Density Residential zone are as follows:

 

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

·      To provide a variety of housing types within a medium density residential environment.

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

 

83.      Officer Comment: The applicant’s justification is considered to be reasonable and sound given the underlying zone objectives and height objectives of the Development Standard. The proposal is considered to positively contribute to the broadening of the variety of housing types within the Medium Density Residential zone.

 

84.      The objectives for Clause 4.3 Height of Buildings development standard state the following:

 

“(1) The objectives of this clause are as follows:

 

(a)     to establish the maximum height for buildings,

(b)     to minimise the impact of overshadowing, visual impact and loss of privacy on   adjoining properties and open space areas,

(c)     to provide appropriate scale and intensity of development through height controls.

 

85.      The applicant has provided the following justification;

 

86.      “The majority of the additional apartment is contained within the approved height of the development and where it exceeds the height standard it represents only a very minor variation.

 

87.      The additional apartment complies with the required separation distances of the ADG does not result in any significant adverse amenity impacts, in terms of privacy, overshadowing, view loss or visual intrusion onto adjoining properties.

 

88.      The proposed development is a high quality residential building that is well articulated using architectural elements, varied setbacks and materials to ensure that the development contributes positively to the streetscape and when viewed from surrounding lands and the public domain.

 

89.      That portion of the development associated with the additional apartment that are noncompliant are minor elements that are not highly visible from the street and have been architecturally treated in a fashion that does not contribute adversely to the bulk and scale of the development.”

 

 

90.      Officer Comment: The variation in height is to a maximum point of 275mm equating to 1.8%. The applicant’s justification is considered to be reasonable. The extent of the variation from an amenity perspective is minor, inconsequential and of minimal impact. Further consideration has been applied to the variation having regard to the principles established under the ‘Five Part Test’ established by the NSW Land and Environment Court. Councils may choose to not only use the principles of Clause 4.6 and SEPP1 but also this five part test.

 

91.      Court cases dealing with applications to vary development standards resulted in the Land and Environment Court setting out a five part test for consent authorities to consider when assessing an application to vary a standard to determine whether the objection to the development standards is well founded, consideration to these principles and extent of variation have been considered as per below.

 

1.    The objectives of the standard are achieved notwithstanding non-compliance with the standard;

92.      Applicant’s comment: “It is considered that the proposed development will provide for the housing needs of the community and incorporates a variety of housing types that satisfy objective of the zone.”

 

93.      Officer comment: The applicant’s justification is considered to be sound given that the underlying objectives have been satisfied.

 

2.    The underlying objective or purpose of the standard is not relevant to the development and therefore compliance is unnecessary;

94.      Applicant’s comment: “it is considered that compliance with the maximum height standard as specified in clause 4.3 KLEP 2012 is both unreasonable and unnecessary in this particular case and it has been demonstrated that there are sufficient environmental grounds to justify contravening the standard.”

 

95.      Officer comment: Given the above, the proposal is considered to be satisfactory which results in a built form which is generally consistent with the maximum height within the zone.

 

3.      The underlying object of purpose would be defeated or thwarted if compliance was required and therefore compliance is unreasonable;

96.      Applicant’s comment:Strict compliance with the development standard would not improve the building’s relationship to its surroundings. The proposed design solution is considered to represent an acceptable development outcome for the site, whilst ensuring the amenity of both existing development and future residents is preserved.”

 

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

97.      Applicant’s comment: “The Section 4.55 (2) Application involves the construction of an additional one (1) bedroom apartment contained within the roof area of the approved BBQ area and the approved height of the development which is generally compliant with the 15m height standard. However, a minor variation of the height standard for a portion of the additional apartment exists as the parapet (RL38.85) of the additional apartment adjacent to the rooftop communal open space results in a maximum height of 15.225m.”

 

98.      Officer comment: The extent of the minor variation is considered to be similar to that of other approved residential flat buildings within the locality. The height breach related to the thickness of the roof slab and will not be readily discernible form the public domain.

 

5.      The compliance with development standard is unreasonable or inappropriate due to existing use of land and current environmental character of the particular parcel of land. That is, the particular parcel of land should not have been included in the zone.

99.      Applicant’s comment: “That portion of the development associated with the additional apartment that is non-compliant are minor elements that are not highly visible from the street and have been architecturally treated in a fashion that does not contribute adversely to the bulk and scale of the development.”

 

100.    Officer comment: The applicant’s justification is considered to be reasonable and sound given that the variation to the height of building satisfies the objectives of the development standard and is of a negligible impact.

 

Is the variation to the development standard consistent with Clause 4.6 of the Hurstville LEP 2012?

101.    Clause 4.6(1):

 

The objectives of this clause are as follows:

 

(a)   to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b)   to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

 

102.    Comment: Flexibility in applying the standard is appropriate and the requisite levels of satisfaction permitted by the controls have been achieved in this case.  The variation is to ensure appropriate floor to ceiling heights for the habitable room of the proposed unit.

 

103.    Clause 4.6(2):

 

“Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.”

 

104.    Comment: Clause 4.3 Height of Buildings is not excluded from the operation of Clause 4.6.

 

105.    Clause 4.6(3):

 

“Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

 

(a)   that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b)   that there are sufficient environmental planning grounds to justify contravening the development standard”

 

106.    Comment: The applicant has provided a written variation request prepared by Devlin Planning. A copy of this justification request for the height of building variation is provided for the Panel’s consideration.

 

107.    Clause 4.6(4):

 

“Development consent must not be granted for development that contravenes a development standard unless:

 

(a)   the consent authority is satisfied that:

 

(i)      the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and”

 

108.    Comment: The written request adequately addresses the matters in subclause (3). Strict compliance with the standard is unreasonable and unnecessary because the development remains consistent with the objectives of the R3 zone and height of building standard as described above. It is considered that sufficient environmental planning grounds to justify contravening the standard given that the non-compliance provides for an improved amenity outcome while resulting in no adverse environmental impacts.

 

(ii)     the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

 

109.    Comment: For the reasons detailed above, the development is considered to be consistent with the objectives of Clause 4.3 Height of Buildings and the R3 Medium Density Residential zone.

 

(b)   the concurrence of the Director-General has been obtained.

 

110.    Comment: As the application seeks a variation to a Development Standard of less than 10%. The proposed residential flat building must be determined by the Local Planning Panel as the modification forms a Section 4.55(2).

 

Conclusion – Assessment of Clause 4.6 Request for Variation

111.    The variation is considered minor in extent for a maximum of 275mm or 1.8% above the 15m height of building control for a length of 3.77m.

 

112.    In a recent Court decision Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118, Preston CJ further clarified the correct approach in the consideration of clause 4.6 requests. This advice further confirms that clause 4.6 does not require that a development that contravenes a development standard must have a neutral or better environmental planning outcome than one that does not. This is considered to be the case in this instance given the additional height sought and minimal impact generated.

 

113.    As held in Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7 at [39], Preston CJ confirmed (at[25]) that the test in 4.6 (4)(a)(i) does not require the consent authority to directly form the opinion of satisfaction regarding the matters specified. Rather, it needs to do so only indirectly in forming its opinion of satisfaction that the applicant’s written request has adequately addressed the matters required to be demonstrated.

 

114.    By contrast, the test in cl4.6(4)(a)(ii) requires that the consent authority must be directly satisfied about the matter in that clause (at[26]); namely that the development will be in the public interest because it is consistent with the objectives of the development standard and the objectives for development of the zone in which the development is proposed to be carried out.

 

115.    The variation for additional height of building has been considered and it concluded that overall, the non-compliance in this instance is acceptable and the applicant’s request is well founded.

 

116.    After careful consideration of the request for additional height on planning merit, it is considered that the minor non-compliance in this case is acceptable and the request is well founded and the variation will satisfy the objectives of both the R3 Medium Density Residential zone and development standard Clause 4.3 Height of Building.

 

117.    Whilst technically a Clause 4.6 Variation Exception to Development Standard does not apply to modifications, similar consideration has been applied to ensure consistency in consideration of the variation.

 

118.    The variation is a minor point variation a result of the slope of the site at the point where the new element is proposed, and is acceptable given its minor nature and the fact that the development reasonably responds in height to the slope of the land.

 

119.    All other applicable provisions within the Kogarah Local Environmental Plan 2012 are considered to be satisfactory in respect to consideration of the extent of works relating to the modification.

 

DRAFT ENVIRONMENTAL PLANNING INSTRUMENTS

120.    The Draft Environment SEPP was exhibited from 31 October 2017 to 31 January 2018.

 

121.    This consolidated SEPP proposes to simplify the planning rules for a number of water catchments, waterways, urban bushland, and Willandra Lakes World Heritage Property.

 

122.    Changes proposed include consolidating the following seven existing SEPPs:

·      State Environmental Planning Policy No. 19 – Bushland in Urban Areas

·      State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011

·      State Environmental Planning Policy No. 50 – Canal Estate Development

·      Greater Metropolitan Regional Environmental Plan No. 2 – Georges River Catchment

·      Sydney Regional Environmental Plan No. 20 – Hawkesbury-Nepean River (No.2-1997)

·      Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005

·      Willandra Lakes Regional Environmental Plan No. 1 – World Heritage Property.

 

123.    The proposal is not inconsistent with the provisions of this Draft Instrument.

 

DRAFT REMEDIATION OF LAND SEPP

124.    The Draft Remediation of Land SEPP was exhibited from 31 January 2018 to 13 April 2018. The proposed remediation of land SEPP will:

 

·      Provide a state-wide planning framework for the remediation of land;

·      Maintain the objectives and reinforce those aspects of the existing framework that have worked well;

·      Require planning authorities to consider the potential for land to be contaminated when determining development applications and rezoning land;

·      Clearly list the remediation works that require development consent;

·      Introduce certification and operational requirements for remediation works that can be undertaken without development consent.

 

125.    The proposal is not inconsistent with the provisions of this Draft Instrument.

 

DRAFT GEORGES RIVER LOCAL ENVIRONMENTAL PLAN 2020

126.    Consideration is given to the provisions of Draft Georges River Local Environmental Plan 2020 in the assessment this application.

 

127.    In this regard, the provisions have no determining weight as a result of proposed operation of Clause “1.8A Savings provisions relating to development applications” of the Draft Plan which provides “If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this plan had not commenced.”

 

DEVELOPMENT CONTROL PLANS

KOGARAH DEVELOPMENT CONTROL PLAN 2013

128.    The relevant sections of the Kogarah DCP 2013 have been considered below:

 

Part B4 – Parking and Traffic

129.    As earlier addressed within this report, the proposal complies with the car parking rates within the Guide to Traffic Generating Development under State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development.

 

Part

Control

Proposed

Complies

9. Vehicular access, parking and circulation

8 x 1 bed = 8 spaces

31 x 2 bed = 46.5 spaces for

2 x 3 bed = 4 spaces

9 visitor spaces

Total: 67.5 spaces

54

No, however compliant with the requirements of SEPP 65 which overrides this control.

 

Part C2 – Medium Density Housing

130.    The modification has been considered in accordance with the applicable clauses of the following subsection. It is noted that the proposal seeks consent for one (1) additional studio unit which triggers the requirement of an additional accessible unit to be provided on site.

 

Part C2- Medium Density Housing – Kogarah DCP 2013

Part 1 Residential Flat Buildings

Required

Proposed

Complies

1. Minimum site requirements

(1) Minimum lot size is 1,000sqm.

2,054.4sqm

Yes

(2) Minimum lot width is 24m.

73.15m

Yes

3. Building Setbacks

(3) Rear boundary setbacks:

(ii) Upper level setbacks are 9m above four storeys. Note: Private open space and balconies must comply with part 4E of the NSW State Government’s Apartment Design Guide.

 

9m

 

Yes

5. Façade Treatment and Street Corners

(1) Building facades must be clearly articulated and employ high quality materials and finishes that enhance and complement the streetscape character.

The proposed unit is considered to be well integrated into the approved residential flat building which adopts contemporary finishes and does not detract from the streetscape character.

Yes

(3) Human scale at street level must be created through the use of scale, rhythm, materiality and/or landscaping.

The proposed additional unit does not detract from the scale, rhythm, materiality or landscaping treatment due to its location.

Yes

6. Landscaped Treatment and Private Open Space

(2) The visual appearance of developments is to be softened through the incorporation into the design planter boxes and similar design treatments that will support landscaping in a minimum soil depth of 800mm.

The proposal incorporates the reconfiguration of planter boxes with the communal rooftop terrace.

Yes

(3) Where landscaping is included on balconies and terraces, the functional area of the private open space is not to be reduced to below the minimum requirements of Part 4E of the Apartment Design Guide.

No landscaping is proposed within the balcony for the new unit.

Yes

(4) Private open space should be adjacent to and visible from the main living and/or dining rooms and be accessible from those areas.

Private open space in the form of balcony adjoins key living areas.

Yes

(5) Development should take advantage of opportunities to provide north facing private open space to achieve comfortable year round use.

The balcony is orientated to the north-east which achieves reasonable levels of solar access.

Yes

(8) Private open space and balconies must comply with part 4E of the NSW State Government’s Apartment Design Guide.

The proposal complies with the minimum private open space area and dimensions.

Yes

7. Common Open space

(1) Common open space to a minimum area of 25% of the site area and with a minimum dimension of 5m is to be provided.

More than 25% communal open space provided on the rooftop with a minimum dimension of 5m.

Yes

(2) A maximum of 50% of common open space may be provided above ground level where:

 

(i) a location at ground level is not possible due to site constraints;

 

(ii) the proposed elevated common open space will provide a similar level of amenity as a common open space at ground level of the site; and

(iii) there will be no significant impact on surrounding properties in respect to the loss of privacy.

The proposal provides 50% of the communal open space on the rooftop which is primarily unchanged as part of this modification resulting in a reduction of 46.45sqm of communal open space from the previous approval.

Yes

(5) The useable and trafficable area of any rooftop common open space is to be set back a minimum of 2.5m from the edge of the roof of the floor immediately below with landscape planters provided to prevent close and direct views into adjoining properties.

The useable trafficable area contains planters along the edge of the communal open space however the setback is less than 2.5m. This is consider to be reasonable given that the majority of the communal open space in unchanged as part of this modification with the exception of the location affected by the proposed new studio unit resulting in a reduction of 46.45sqm of communal open space. The communal open space remains compliant.

Yes

(6) Roof top common open space areas should include equitable access for all residents, and must be designed to ensure that noise and overlooking will be avoided, by way of screening and setbacks from boundaries as detailed in Figure 6.

Rooftop areas contain equitable access with appropriate screening and setbacks proposed.

Yes

8. Solar Access

(1) Shadow diagrams are to be submitted for the winter solstice (21 June) to demonstrate impacts at a minimum of 9am, midday and 3pm

Shadow diagrams have been provided with the application.

Yes

(2) Shadow diagrams should include elevational diagrams identifying the habitable rooms and private open space areas of the adjoining dwellings, and view from the sun diagrams, identifying solar access compliance to the proposed development.

The proposal has not provided elevational shadow diagrams however based on the shadow diagrams and Council’s assessment compliant levels of solar access have been provided.

 

(3) Shadow diagrams are required to show the impact of the proposal on the sunlight to the open space of neighbouring properties. Existing overshadowing by fences, roof overhangs and changes in level should also be reflected in the diagrams.

Shadow diagrams provided.

Yes

10. Views and view sharing

(1) Development shall provide for the reasonable sharing of views.

The proposal does not result in any unreasonable view sharing impacts.

Yes

11. Dwelling Mix

 (1) Developments that propose more than 10 apartments are to provide a mix of dwellings consistent with the following percentage mix:

 

 

(i) Studio and 1 bed apartments – Minimum of 20%

(ii) 2 bed apartments – Maximum of 30%

(iii) 3+ bed apartments – Minimum of 15%

The proposal seeks one (1) additional studio unit which alters the unit mix for studio and 1 bedroom apartments. This equates to 19.5% for studios and 1 bedroom apartments combined.

 

As this forms a modification, the existing approved composition is considered to be reasonable.

Yes

(2) Any variations to the apartment mix are to take into consideration:

 

(i) the distance to public transport, employment and education centres.

(ii) the current market demands and projected future demographic trends.

(iii) the demand for social and affordable housing.

(iv) different cultural and socioeconomic groups. Apartment configurations are to support diverse household types and stages of life including single person households, families, multi-generational families and group households.

The proposed additional studio unit results in an increase in housing diversity as there were no studios previously approved within this residential flat building.

Yes

12. Adaptable and accessible housing

(1) The minimum number of adaptable units designed in accordance with AS4299 - 1995 Adaptable Housing must be incorporated into the developments included in this section:

 

(i) 5-10 units – 1 adaptable unit

(ii) 11-20 units – 2 adaptable units

(iii) 21-30 units – 3 adaptable units

(iv) 31-40 units – 4 adaptable units

(v) 41-50 units – 5 adaptable units

(vi) 51+ units - 6 adaptable units + 10% of additional dwellings beyond 60 (rounded up to the nearest whole number).

 

5 adaptable units are required for 41 units.

The existing approval seeks one (1) additional studio unit resulting in a total of 41 units. It is noted that six (6) adaptable units were provide as part of the original approval being:

 

Units; G.5, G.7, 1.05, 1.06, 2.04, and 2.06.

Yes

(2) The adaptable units must comply with the relevant Australian Standards and be certified as “adaptable housing units” and every adaptable unit needs to have an accessible car space.

Six (6) adaptable units each with a car space were provided with the original approval which complies with Council’s requirements and the Australian Standards.

Yes

(3) Developments must be designed and constructed to comply with:

 

(i) AS 1428.1 – 1993 Design for Access and Mobility Part 1

(ii) AS 1428 – 1993 Design for Access and Mobility Part 2 Enhanced and Additional Requirements – Buildings and Facilities.

(iii) Relevant provisions of the Building Code of Australia

The determination will contain a condition to ensure compliance.

Yes

(4) Notwithstanding compliance with the above, the development is to be designed to meet the needs of people with disabilities, including:

 

(i) The provision for a continuous accessible path of travel from all public roads and public spaces as well as unimpeded internal access;

(ii) The provision in design for ease of use and comfort through appropriate gradients, rest areas, circulation space and user friendly entrances;

(iii) Safety design measures, including contrasting colour for points of danger and slip resistant surfaces; and

(iv) Legible design features such as signs and indicators to assist the location of handrails and guardrails.

The remainder of the building complies with the accessible requirements.

Yes

 

INTERIM POLICY GEORGES RIVER DEVELOPMENT CONTROL PLAN 2020

131.    The proposed development is subject to the provisions of the Interim Policy Georges River DCP 2020. Only the applicable aspects have been assessed with respect to the Interim DCP. All other aspects have been thoroughly assessed under the Hurstville DCP No.1. The aim of an Interim Policy is to set a consistent approach for the assessment of residential development within the Georges River Local Government Area, until such a time as a comprehensive DCP is prepared and implemented. Comments are made with respect to the proposal satisfying the objectives and controls contained within the DCP. The modification is not inconsistent with the controls contained within the DCP given the nature of the modification.

 

IMPACTS

 

Natural Environment

132.    The modification works are contained within the approved building footprint whereby there are no changes or impacts in relation to trees, excavation or stormwater disposal.

 

Built Environment

133.    The modification as proposed results in a scale and form being acceptable and consistent with the future character of the locality.

 

Social Impacts

134.    The modification is unlikely to result in any unreasonable social impacts given the residential nature of the proposal. Whilst the modification seeks to add an additional studio unit, given the proximity of this unit to the communal open space area, a condition has been added to manage the impact on the amenity of the apartment from the rooftop communal open space as follows:

 

Use of the rooftop common area - The rooftop common area shall be vacated and not used between the hours of 10.00pm and 8.00am the following day”.

 

135.    This condition has been added has been added to protect the amenity for this proposed unit which directly adjoins the communal open space.

 

136.    It is also noted that the applicant has raised no objection to this condition being imposed.

 

Economic Impacts

137.    The modification is unlikely to result in any unreasonable economic impacts given the residential nature of the use.

 

Suitability of the site

138.    The modification as amended for a studio is of a scale and design that is generally suitable for the site having regard to its size and shape and relationship to adjoining developments.

 

SUBMISSIONS, REFERRALS AND THE PUBLIC INTEREST

139.    The application was notified to ­­adjoining owners, occupiers, for a period of 14 days between 1 and 16 July 2020.  In response, one (1) submission was received raising the following issues.

 

Impact of excavation to adjoining properties

140.    Comment: Concerns were raised regarding excavation and impacts to adjoining properties. The proposal does not seek any changes to the approval in relation to excavation as the extent of works relate to the addition of a one (1) bedroom unit on the fourth floor. Conditions relating to excavation approved under DA2016/212 remain unchanged by this proposal.

 

External Referrals

Ausgrid

141.    The application was referred to Ausgrid as per Clause 45(2) of the State Environmental Planning Policy (Infrastructure) 2007 for consideration. In response, comments were received which supported the proposed works subject to conditions relating to supply of electricity and service mains.

 

Air Services Australia

142.    A request was submitted to the Air Services Australia through the NSW Planning Portal on May 2020. On 16 June Council received an email via the NSW Planning Portal that the statutory timeframe for the agency had now expired. On that basis, no concerns were raised.

 

Public Interest

143.    The amended proposal has been assessed against the relevant planning policies applying to the site having regard to the objectives of the controls.  Therefore, the proposal as modified is considered to be in the public interest.

 

Section 7.12 Contributions

144.    A revised Section 7.12 Contribution amount of $402,547.26 is applicable.

 

CONCLUSION

145.    The Section 4.55(2) Modification has been assessed in accordance with the applicable statutory considerations and the amended proposal is considered to be satisfactory.

 

146.    Having regard to the matters for considered under Part 4.15, and 4.55(2) Modification of Consents of the Environmental Planning and Assessment Act 1979, Modification Application No. MOD2020/0084 is recommended for approval subject to conditions.

 

DETERMINATION AND STATEMENT OF REASONS

147.    Statement of Reasons

·      The amended proposal has adequately provided justification for the exceedance to Clause 4.3 height of building of the Kogarah Local Environmental Plan 2012.

 

·      The amended proposal complies with other aspects of the planning controls.

 

·      The amended proposal is consistent with the objectives of the applicable considerations and in particular, State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development.

 

·      In consideration of the aforementioned reasons, the amended proposed development is a suitable response to the site and its approval is in the public interest.   

 

148.    Determination

THAT pursuant to Section 4.55(2) of the Environmental Planning and Assessment Act, 1979, as amended, the Georges River Local Planning Panel grants development consent to MOD2020/0208 to provide an additional studio unit on the fourth level of a residential flat building at Lots 23 – 26 in DP 5452 and known as 27 - 33 Nielson Avenue, Carlton for subject to the following conditions:

 

SECTION A - General Conditions

 

The conditions that follow in this Section A of the Notice of Determination are general conditions which are imposed to ensure that the development is carried out in accordance with the development consent.

 

1.         Approved Plans of Consent

 

The development must be implemented in accordance with the approved plans, specifications and details listed below and any supporting information submitted with the Development Application except as amended by any conditions attached to the Development Consent:

 

(i)         Architectural plans- Prepared by Architecture and Building Works Project No PN-16005 Drawing numbers DA-0800 (J), DA-0900 (J), DA-1000 (M), DA-1100 (G), DA-1200 (G), DA-1300 (F), DA-1400 (H), DA-1500 (H), DA-2000 (F), DA-2100 (F), DA-2200 (F), DA-3000 (F), DA-3100 (D), DA-3200 (E) and DA-3300 (D) received by Council on 31 November 2017.

 

And as amended by architectural plans prepared by Loucus Architects, No. A-1400, A-1500, A-2000, A-2100, A-2200, A-3000, Rev B dated 30.09.20.

 

(This condition is modified as part of MOD2020/0084 (DA2016/0212))

 

(i)(a)    BASIX Certificate 744512_12 dated 1 October 2020 prepared by Max Brightwell.

 

(This condition is added as part of MOD2020/0084 (DA2016/0212))

 

(ii)        Landscape plans- Prepared by Isthmus- Drawing numbers ISO213DA1 and DA2 Issue D dated 10 October 2017.

 

(ii)(a) The rooftop landscape plan is to be amended to be consistent with approved architectural plan A-1400 prepared by Loucus Architects, Rev B dated 30.09.20. 

 

(This condition is added as part of MOD2020/0084 (DA2016/0212))

 

(iii)       Stormwater plans- Australian Consulting Engineers- Job No 1606380 Drawing numbers D00 (A), D01 (C), D02 (C), D03 (E), D05 (C), D06 (A), D07 (A),

 

SECTION B – Prior to the Issue of a Construction Certificate or Demolition Conditions

 

The conditions that follow in this Section B of the Notice of Determination relate to the payment of fees, amendments being made to the proposal, further investigation being undertaken or the preparation of documentation that must be complied with prior to the issue of a Construction Certificate or Demolition.

 

Note:  A copy of the Construction Certificate shall be forwarded to Council prior to commencement of construction where Council is not the certifier who issued the Construction Certificate.

 

2.         Asset & Building Fees

 

Payment of the following amounts as detailed below:

 

·    *Builders Long Service Levy of                                         $107,786.69

·    Driveway Design and Inspection Fee (Dwelling) of      $ 1,000.00

·    Driveway and Restoration Works Design Inspection
Fee of                                                                                     $ 36,400.00

·    Asset Inspection Fee of                                                      $ 110.00

 

*Note: The Builders Long Service Levy quoted is based on the market value of the proposed building works and the Levy Rate applicable at the time of assessing the Development Application and may be subject to change prior to payment.

 

3.         Restoration Deposit

 

A deposit of $36,400.00 shall be lodged with Council to ensure the completion of the following works to be completed at the applicant's expense

 

·... Construction of 1.2 metre wide concrete footpath along Nielsen Avenue.

·    All associated road pavement restorations.

·    Installation of turf as required across full street frontage along Nielsen Avenue.

 

These works are to be in accordance with plans and specifications to be issued by Council.

 

4.         Section 94 Index

 

Section 94 Contributions are to be paid as detailed below in the following condition, and until paid all contributions will be indexed four (4) times a year (on the following dates) to allow for the cost increases: 31 January, 30 April, 31 July and 31 October.

 

5.         Section 94 Contributions

As at the date of Development Consent the following contributions have been levied on the subject development under Section 94 of the Environmental Planning and Assessment Act, 1979 and the nominated Section 94 Contributions Plans:

 

No.1 – Roads and Traffic Management – Residential

$    5,389.68

No.5 – Open Space 2007

$382,396.40

No.9 – Kogarah Libraries – Buildings

$    6,143.80

No.9 – Kogarah Libraries – Books

$    8,617.38

TOTAL

$402,547.26

 

Any of the above Section 94 Contributions Plans may be inspected at the Georges River Council Customer Service Centres.

 

(This condition is modified as part of MOD2020/0084 (DA2016/0212))

 

6.         Dilapidation Report

 

Prior to issue of any construction certificate or commencement of any demolition or earth works on site, the applicant shall submit, for acceptance by the Principal Certifying Authority (PCA), with a copy forwarded to Council where Council is not the PCA, a full dilapidation report on the visible and structural condition of the following properties;

 

(i)      All neighbouring buildings likely to be affected by the excavation as determined by the consulting engineer.

 

The report must be completed by a suitably qualified consulting structural/ geotechnical engineer as determined necessary by that professional based on the excavations for the proposal, the subsoil conditions and any recommendations of a geotechnical report for the site. The report shall have regard to protecting the applicant from spurious claims for structural damage and shall be verified by all stakeholders as far as practicable.”

 

Reports relating to properties that refuse access to carry out inspections to complete the dilapidation report, after being given reasonable written notice to request access (at least 14 days) at a reasonable time (8.00am-6.00pm), are not to hold up the release of the Construction Certificate.

 

7.         Soil and Water Management

 

A Soil and Water Management Control Plan, incorporating contour levels and prepared in accordance with Environmental Site Management Policy shall be submitted to Council detailing all measures to control soil erosion and sedimentation runoff from the site during excavation and construction activities.

 

8.         SEPP No 65 Certification

 

A design verification statement from a qualified designer shall be submitted that verifying that the plans and specifications achieve the design quality of the development for which consent was granted having regard to the design quality principles of State Environmental Planning Policy No. 65.

 

9.        Adaptable Housing Compliance

 

The proposed development including the nominated adaptable units shall comply with the adaptable housing provisions of AS4299 – Adaptable Housing and AS1498 – Access and Mobility (Parts 1 and 2). The Adaptable Housing checklist and circulation diagram demonstrating compliance shall be submitted.

 

 9A.      Unit 4.02 storage

 

2m³ of storage is to be located within the basement level to service unit 4.02 and referenced on all plans and documents.

 

(This condition is added as part of MOD2020/0084 (DA2016/0212))

 

10.       Ausgrid Sub Station

 

The applicant is to confer with Ausgrid to determine if an electricity distribution substation is required. If so, shall be incorporated within the Construction Certificate and it will be necessary for the final film survey plan to be endorsed with an area having dimensions 5m x 4m over the location of the proposed electricity distribution substation to be dedicated to Council as public roadway, or as otherwise agreed with Ausgrid. Ausgrid’s requirements are to be met prior to release of the occupation certificate.

 

11.       Clearances to Overhead Mains

 

If any part of the proposed structure, within 5m of a street frontage, is higher than 3m above footway level, the applicant is to confer with Ausgrid to determine if satisfactory clearances to any existing overhead mains will be affected. If so, the applicant is to make arrangements with Ausgrid for any necessary modification to the electrical network in question.

 

These works to be at the applicant’s expense and Ausgrid’s requirements are to be met prior to actual construction commencing on site or as agreed with Ausgrid.

 

Supply of electricity

 

It is recommended that for the nominated electrical consultant/contractor to provide a preliminary enquiry to Ausgrid to obtain advice for the connection of the proposed development to the adjacent electricity network infrastructure. An assessment will be carried out based on the enquiry which may include weather or not:

-     The existing network can support the expected electrical load of the development

-     A substation may be required on-site, either a pad mount kiosk or chamber style and;

-     Site conditions or other issues that may impact on the method of supply.

-     Please direct the developer to Ausgrid’s website, www.ausgrid.com.au about how to connect to Ausgrid’s network

 

Service mains

 

It appears that existing overhead electricity service mains, that supply the subject property, may not have sufficient clearance to the proposed construction as per the requirements of the “Installation and Service Rules of NSW”. It is recommended that the developer engage a Level 2 Accredited Service Provider (ASP) Electrician to ensure that the installation will comply with the Service Rules.

 

            (This condition is modified as part of MOD2020/0084 (DA2016/0212))

 

12.     Sydney Water (DA Only)

 

The approved plans must be processed through Sydney Water to determine whether the development will affect any Sydney Water asset’s (sewer and water mains, stormwater drains and/or easements) and if any further requirements need to be met.  An approval receipt will be issued by Sydney Water which is to be submitted to Council or the Principal Certifying Authority.

 

Please refer to the web site www.sydneywater.com.au for;

 

·    Sydney Water Tap in – see Plumbing, building and developing and then Sydney Water Tap in; and

·    Building over/adjacent to a Sydney Water Asset - see Plumbing, building and developing, building then Building Approvals or telephone 13 20 92.

 

13.       Certification of Detailed Plan

 

The detailed stormwater plan is to be certified by a Chartered Professional Engineer.  A statement, that the stormwater system has been designed in accordance with Council’s Water Management Policy and satisfies the provisions and objectives of that policy, must be included in the Stormwater Detailed Plan.

 

14.       Stormwater Plan

 

The submitted stormwater plan has been assessed and approved as a concept plan only. No detailed assessment of the design has been undertaken. A Detailed Stormwater Plan and supporting information of the proposed on-site stormwater management system is to be submitted. The required details in this Plan and the relevant checklist are presented in the document ‘Water Management Policy. Kogarah Council. August 2006’

 

The design parameters and the general concept of the proposed on-site stormwater management system are to be the same as documented in the approved Concept Stormwater Plan for the proposed development. Any conceptual variations to the stormwater design will require written approval from Council and will require to be justified and supported by appropriate details, calculations and information to allow for proper assessment.

 

The Detailed Stormwater Plan is to address the following issue(s):

 

a)   A suitably qualified engineer is to certify that appropriate design measures have been taken to ensure that the upper and lower basements have been protected from flooding in the case of the On-site Detention system malfunctioning or reaching capacity.

 

15.        Ingress Points

 

All possible ingress points such as vehicle entrances and exits, ventilation ducts, windows, light wells, lift shaft openings, risers and stairwells to the basement car parking levels are to be built at or protected up to the 1 in 100 year flood levels. The applicant will need to liaise with the flood consultant with respect to the required levels at each possible ingress location.

 

SECTION C – Prior to Commencement of Construction Conditions

 

The conditions that follow in this Section C of the Notice of Determination are specific to the proposed development and must be complied with prior to the commencement of construction on the site.

 

16.       Geotechnical Report

 

Excavation of the site is to extend only to that area required for building works depicted upon the approved plans. All excess excavated material shall be removed from the site.  In this regard, all excavated waste materials shall be disposed of at an approved Waste Depot.

 

No rock breaking or other machinery for the excavation, drilling, cutting or removal of rock shall be used on the site prior to the acceptance by the principal certifying authority of the following documentation:

 

(i)         A report by a geotechnical engineer detailing the measures recommended in undertaking the works so as to prevent damage to any adjoining or nearby buildings.

(ii)        The type and size of machinery proposed.

(iii)       The routes of all trucks to convey material to and from the site.

 

17.       On-Site Detention

 

A 49.6m3 On-Site Detention system with a Maximum Site Discharge of 25 Litres per Second is to be provided in accordance with the Stormwater Concept Plan and associated Design Assessment Report. The overflow is to be directed to the site drainage system.

 

18.       Certification by Mechanical Engineer

 

To ensure that adequate provision is made for ventilation of the building, mechanical and /or natural ventilation shall be provided. These systems shall be designed in accordance with the provisions of:-

 

a)    The Building Code of Australia;

b)    Australian Standard AS 1668 Part 1 - 1998;

c)    Australian Standard AS 1668 Part 2 - 2002;

d)    The Public Health Act 2010;

e)    The Public Health Regulation 2012;

f)     Australian Standard 3666.1 - 2002;

g)    Australian Standard 3666.2 - 2002;

h)    Australian Standard 3666.3 - 2000.

 

Details of all mechanical and /or natural ventilation systems, along with specific certification, provided by an appropriately qualified person, verifying compliance with the abovementioned requirements.

 

19.     Structural Engineer’s Details

 

Engineer's details prepared by a practising Structural Engineer being used to construct all reinforced concrete work, structural beams, columns & other structural members.  The details are to be submitted to the Principal Certifying Authority for approval prior to construction of the specified works.

 

A copy shall be forwarded to Council where Council is not the PCA.

 

20.     Tree Protection

 

Prior to the commencement  of any works on the site the tree protection measures required for the established Tree Protection Zone (TPZ) of the trees to be retained shall be installed in accordance with Section 4 - Australian Standard AS 4970-2009 - Protection of trees on development sites.

 

Unless otherwise specified in AS 4970-2009 a protective fence consisting of 1.8m high fully supported chainmesh shall be erected around the base of the tree. The distance of the fence from the base of each tree is to be in accordance with the TPZ listed below. A layer of organic mulch 100 millimetres thick shall be placed over the protected area and no soil or fill should be placed within the protection area.

 

There shall be no services installed within the drip line TPZ of the tree. This fence shall be kept in place during demolition, construction and also have a sign displaying “Tree Protection Zone” attached to the fence, this must also include the name and contact details of the Project Arborist.

 

21.     Tree Retention – Arborist Report

 

            The trees identified for retention in the Arboricultural Development Assessment Report dated September 2016 by Paul Vegzoff of Moore Trees listed below shall be protected in accordance with the above report and the requirements of Section 4 - Australian Standard AS 4970-2009 - Protection of trees on development sites.

 

Tree Numbers

Location on site

TPZ

1,2,3, 9 -11 26 – 29, 30, 31

 

27 – 33 Nielsen Avenue, Carlton

Refer to Arborist report

 

22.     Protection of Site – Hoarding

 

A hoarding or fence must be erected between the work site and the public place if:

 

·    the work involved in the erection or demolition of a building is likely to cause obstruction or inconvenience to pedestrian or vehicular traffic in a public place; or

·    if it involves the enclosure of a public place.

 

If necessary an awning is to be erected which is sufficient to prevent any substance from or in connection with the work from falling into a public place.

 

Any such hoarding, fence or awning is to be removed when the work has been completed.

 

If the work site is likely to be hazardous to persons in a public place, it must be kept lit between sunset and sunrise.

 

23.     Ground Anchors

 

Should the proposed development require the installation of ground anchors to a road reserve the following must be complied with:

 

·      The appropriate Roads Act 1993 approvals shall be obtained.

·      The anchoring is to be de-stressed once no longer required.

·      The work is to be clear of all services contained within the public roadway and the required dial before you dig investigations are to be undertaken in relation to any services that may be in the proposed anchor locations.

·      Public liability insurances being held by the builder/ developer with a copy being submitted to Council.

·      A works-as-executed plan showing the exact location of all anchoring points being submitted to Council upon their installation.

 

It is to be noted that if anchoring into adjacent private properties is required any such approval would need to be obtained from the owners of this property.

 

24.     Driveway

 

In respect to vehicular access to the proposed development the gutter crossing and driveway are to be reconstructed between the kerb and street alignment to Council’s specifications.

 

In this regard a separate driveway application is to be lodged with Council for works outside the property boundary.  Furthermore the design boundary level is to be received from Council prior to construction of the internal driveway.

 

25.     Council Infrastructure Inspection

 

Prior to the commencement of any works an authorised representative of the applicant is to organise and attend a meeting on site with Council’s Infrastructure Compliance Co-ordinator to discuss protection of Council’s infrastructure. To organise this meeting contact Council’s Customer Service Centre on 9330 6400.

 

26.     Public Liability Insurance

 

All nominated contractors / applicants carrying out driveway and/or restoration works on Council property must carry public liability insurance with a minimum cover of twenty million dollars ($20,000,000.00). In this regard, prior to commencement of works, the principal contractor is to lodge an “Application for the Construction of Work by Private Contractor” to Council, which includes submitting evidence of their current insurance. The principal contractor must ensure that sub-contractors are also adequately insured.

 

27.     Soil Erosion Controls

      

Prior to commencement of any site works, erosion and sediment controls are to be installed in accordance with Environmental Site Management Policy and any approved Soil and Water Management Plan and shall incorporate:

 

·    Measures to prevent sediment and other debris escaping from the cleared or disturbed areas into drainage systems or waterways;

 

·    Controls to prevent tracking of sand, soil, aggregates, etc, by vehicles onto adjoining roadways.

 

SECTION D – Construction and Operational Conditions

 

The conditions that follow in this Section D of the Notice of Determination are imposed to ensure the development is constructed and operates having regard to relevant legislation and does not unreasonably impact on the amenity of the locality or environment during the construction phase or the operation of the use.

 

28.     Inspections - Multi Unit

 

The following lists of inspections are the MANDATORY CRITICAL STAGE INSPECTIONS that MUST be carried out by the Principal Certifying Authority (PCA).

 

(a)      at the commencement of building works

(b)       prior to covering waterproofing in any wet areas, for a minimum of 10% of rooms with wet areas within a building, and

(c)        prior to covering any stormwater drainage connections, and

(d)       after the building work has been completed and prior to any occupation certificate being issued in relation to the building.

 

Certificates from your engineer or subcontractor are NOT acceptable in the first instance for the above inspections.  Failure to have your PCA carry out these inspections could result in a delay or refusal to issue an Occupation Certificate.

 

In addition to the above, it is recommended that the following inspections be carried out for the subject development;

 

·          Erosion Control

·          Earthworks/Excavation

·          Building setout

·          Concrete reinforcement

·          Timber and/or steel framework

·          Mechanical/Hydraulic work

·          Driveways

·          Landscaping

·          External Finishes

 

29.     Storage of materials on Public Road

 

All building materials or waste containers must be stored within the confines of the site.  The storage of such building materials, waste containers or equipment associated with the project upon the public roadway, including the pedestrian footway or unpaved verge, is prohibited.

 

30.     Use of Crane on Public Road

 

Prior approval must be obtained from Council a minimum of 24 hours before the use on any site of a crane, hoist or similar machinery that will be used to transfer materials across Council’s footpath.  This includes cranes that are situated on roadways, footpaths and road reserves.

 

Any application for approval must be accompanied by the following information:-

 

·      Site sketch indicating the proposed location of the crane, pedestrian controls and traffic controls;

·      A copy of current public liability insurance with minimum cover of twenty million dollars ($20,000,000) indemnifying Council in the event of an incident;

·      A copy of an RMS accredited traffic control plan;

·      Proof that the local area command of the NSW Police have been advised of the proposal.

 

The use of a crane, hoist or similar machinery on any site without prior approval is prohibited.

 

31.     Building Height - Surveyors Certificate

 

The proposed building is not to be erected at a height greater than that indicated on the approved plan.  A certificate from a Registered Surveyor verifying the correct Reduced Level of the ground floor slab and boundary clearances shall be submitted prior to inspection of the steel reinforcement.

 

32.     Excavation of Site

 

Excavation of the site is to extend only to that area required for building works depicted upon the approved plans.  All excess excavated material shall be removed from the site.  In this regard, all excavated waste materials shall be disposed of at an approved Waste Depot (details are available from Council).

 

All excavations and backfilling associated with the erection or demolition of a building must be executed safely and in accordance with appropriate professional standards.

 

All excavations associated with the erection or demolition of a building must be properly guarded and protected to prevent them from being dangerous to life or property.

 

If the soil conditions require it, retaining walls associated with the erection or demolition of a building or other approved methods of preventing movement of the soil shall be provided and adequate provision shall be made for drainage.

 

33.     Stormwater to Kerb

 

Any stormwater connections to the kerb and gutter are to be in accordance with Council's 'Specification for Construction by Private Contractors'.

 

34.     Redundant Driveway

 

All existing vehicular crossings adjacent to the subject premises that have become redundant shall be removed and the footway and kerb and gutter reinstated at the developer/applicants expense.

 

35.     Work within Road Reserve

 

A Development Consent or any related Construction Certificate does not allow for the erection of a structure or to carry out work in, on or over a public road.  Should a structure or work be required a separate approval under S138 of the Road Act 1993 must be granted by Council prior to the commencement of any works within the road reserve. Applications may be made at Council’s Customer Service Centre.

 

36.     Damage within Road Reserve & Council Assets

 

The owner shall bear the cost of restoring any footpath, roadway and any other Council assets damaged due to works at, near or associated with the site.  This may include works by Public Utility Authorities in the course of providing services to the site.

 

37.     Public Utility & Telecommunication Assets

 

The owner shall bear the cost of any relocation or modification required to any Public Utility Authority assets including telecommunication lines & cables and restoring any footpath, roadway and any other Council assets damaged due to works at, near or associated with the site.

 

38.     Stormwater Drainage

 

All roof water and surface water from paved or concreted areas being disposed of to the street gutter by means of a sealed pipeline constructed in accordance with AS/NZS 3500.3.2.  The line must pass through a silt arrestor pit, a standard design is available within Council’s Water Management Policy.

 

39.      Garbage Room

 

The proposed garbage room being provided with the following:-

 

a)    A smooth concrete floor graded and drained to a floor waste connected to the sewer of the Water Board.

 

b)    The walls being cement rendered with the intersection of the walls and floor being coved to a radius of not less than 25mm.

 

c)    The door being close fitting to prevent the access of rats and mice.

 

d)    A cold water hose cock being provided for the cleaning of containers and the room itself.

 

e)    Ventilation being provided by means of direct connection to the outside air to the satisfaction of Council.

 

f)     A sign, minimum size 600mm x 600mm, directing residents not to place recyclables in garbage carts and encouraging residents to recycle.  Details of an acceptable wording for the sign are available from Council.

 

40.    Hours of Construction

 

Construction may only be carried out between 7.00 am and 5.00 pm on Monday to Saturday and no construction is to be carried out at any time on a Sunday or a public holiday.

 

41.     Restriction on Hours of Excavation (other than single residential dwelling)

 

Despite the general hours of construction above,

 

a)         The hours where rock breaking, cutting, hammering and drilling occur shall be limited to 9:00am – 4:00pm on weekdays only.

 

b)         A noise management plan for the above works, prepared by a suitably qualified acoustical practitioner in accordance with the Interim Noise Construction Guidelines prepared by the Department of Environment & Climate Change NSW, must be submitted to Council prior to commencement of any excavation works.

 

41A.   Use of the rooftop common area

 

The rooftop common area shall be vacated and not used between the hours of 10.00pm and 8.00am the following day.               

 

(This condition is added as part of MOD2020/0084 (DA2016/0212))

 

42.     Provision of Amenities

 

Toilet facilities are to be provided, at or in the vicinity of the work site on which work involved in the erection or demolition of a building is being carried out, at the rate of one toilet for every 20 persons or part of 20 persons employed at the site or as specified by Workcover requirements .

 

·           each toilet provided must be a standard flushing toilet and must be connected:

·           to a public sewer; or

·           if connection to a public sewer is not practicable, to an accredited sewage management facility approved by the Council; or

·           if connection to a public sewer or an accredited sewage management facility is not practicable, to some other sewage management facility approved by the Council.

 

The provision of toilet facilities must be completed before any other work is commenced.

 

43.     Letter Boxes

 

Suitable letter box facilities (including Owner's Corporation in the case of strata units) shall be provided in accordance with Australia Post specifications.

 

44.     Oil/Silt Separator

 

An oil/silt separator sized to the catchment area must be specified on the Stormwater Detailed Plans and located downstream of the proposed basement car park and prior to discharge to councils stormwater system.

 

45.     Car Wash

 

To ensure that waste water is treated in an acceptable manner the car wash bay shall be designed and constructed to ensure that waste water is discharged to the sewer in accordance with the requirements of Sydney Water. Evidence of a permit issued by Sydney Water shall be submitted.

 

46.     Basix Certificate Details – DA Only

 

Construction of building works given Development Consent must be carried out in accordance with a valid and current BASIX certificate and all required commitments must be satisfied.

 

47.     Air Conditioning / Offensive Noise

 

Air conditioning plant and equipment shall be installed and operated so as to not create an offensive noise as defined under the Protection of the Environment Operations Act 1997 and Protection of the Environment Operations (Noise Control) Regulation 2008.

 

48.     Building Finishes

 

The building finishes are to be constructed in accordance with the colour board and perspective submitted with the Development Application.

 

49.     Allocation of Car Parking Spaces

 

A minimum of 54 off street car parking spaces shall be constructed, drained, marked and maintained at all times in accordance with the approved plans.  These spaces shall be allocated as follows:

 

a)         45 are to be allocated to the residential units.

b)         9 are to be allocated as visitor parking spaces.

 

50.     Residential Car Parking Spaces

 

A minimum of one (1) unrestricted car parking space shall be allocated to each residential unit.

 

51.     OSD Markers

 

All on-site stormwater storages that experience permanent or temporary ponding shall be indicated on the site by fixing a marker plate.

 

52.     Visitor Parking

 

A directional sign shall be provided at the front of the site indicating the availability of visitor and/or customer parking on site.  Those visitor and/or customer spaces shall be marked or signposted.

 

53.      Planting or Walls

 

Planting or walls adjacent the driveway near the boundary shall comply with the requirements of “AS/NZS 2890.1:2004 - Off Street Car Parking, Section 3.2.4(b)”.

 

54.      Works Zone

 

The installation of a "Works Zone" for the site will require the approval from the Traffic Advisory Committee. As a result, the applicant shall provide a formal request to Council's Traffic Section with the duration and exact location of the required "Works Zone" at least 6 weeks prior to its required installation date. All costs associated with the installation of a “Works Zone” will be at the applicants expense.

 

55.       Road Closure Application

 

A Road Closure Application form and associated documents shall be submitted to Council for approval at least 5 business days prior to any proposed lane usage for concrete pours, cranes or other activities involved in the demolition, excavation and construction on the site.

 

56.     Tree Protection - Excavation

 

            Excavations around the trees to be retained on site or the adjoining properties shall be supervised by the Project Arborist to ensure that the root system will not adversely be affected.

 

            Where the Tree Protection Zone (TPZ) of trees on site or adjoining sites become compromised by any excavation works, the Project Arborist shall be consulted to establish the position of any major roots and determine the necessary measures to protect these roots. The recommendations of the Arborist shall be submitted to Council prior to any further demolition or construction works taking place.

 

            Tree Protection Zone (TPZ) around the trees to be retained are not to have soil level changes or services installed in this area. Any structures proposed to be built in this area of the trees are to utilise pier and beam or cantilevered slab construction.

 

SECTION E – Prior to Occupation or Subdivision Certificate Conditions

 

The conditions that follow in this Section E of the Notice of Determination relate to conditions that ensure that the development is completed in accordance with the requirements of the Development Consent prior to the issue of either an Occupation Certificate or a Subdivision Certificate.

 

57.     Adaptable Housing Certification

 

Certification shall be provided by a person suitably accredited by the Association of Consultants in Access Australia, verifying that the development has been constructed in accordance with the requirements of AS4299 - Adaptable Housing and AS1428 - Design for Access and Mobility and in accordance with the report and checklist submitted with the Construction Certificate. 

 

(This condition is modified as part of MOD2020/0084 (DA2016/0212))

 

58.     SEPP No 65 Certification

 

A design verification statement from a qualified designer shall be submitted verifying that the development achieves the design quality of the development as shown in the plans and specifications in respect of which the construction certificate was issued, having regard to the design quality principals of State Environmental Planning Policy No. 65.

 

59.     Completion of Landscaping

 

Certification shall be provided from a suitably qualified and experienced Landscape Designer or Landscape Architect.  This Certification shall verify that the landscape works have been completed in accordance with the approved detailed landscape plan and relevant conditions of this consent.

 

Note:   A Landscape Designer is a person eligible for membership of the Australian Institute of Landscape Designers and Managers and a Landscape Architect is a person eligible for membership of the Australian Institute of Landscape Architects as a Registered Landscape Architect.

 

60.     Consolidation of Lots

 

The lots covered by this development consent shall be consolidated into one lot and proof of registration of the consolidation shall be submitted to Council.

 

61.     Section 73 Compliance Certificate

 

A Section 73 Compliance Certificate under the Sydney Water Act, 1994 must be obtained from Sydney Water Corporation.

 

Application must be made through an authorised Water Servicing Coordinator.  Please refer to the Building Developing and Plumbing section of the web site www.sydneywater.com.au then refer to “Water Servicing Coordinator” under “Developing Your Land” or telephone 13 20 92 for assistance.

 

Following application a “Notice of Requirements” will advise of water and sewer infrastructure to be built and charges to be paid.  Please make early contact with the Coordinator, since building of water / sewer infrastructure can be time consuming and may impact on other services and building, driveway or landscape design.

 

The Section 73 Certificate must be submitted to the Principal Certifying Authority.

 

62.     Stormwater Compliance Certificate

 

A Stormwater Compliance Certificate is to be obtained for the constructed on-site stormwater management systems in conjunction with the works-as-executed drawings and the final inspection. This Certificate is to be signed by an accredited hydraulic engineer (preferably be the original design consultant) and submitted to the Principal Certifying Authority. Copy of the standard Stormwater Compliance Certificate is shown in Council’s Water Management Policy.

 

If the proposed works involve Council owned stormwater infrastructure (or infrastructure to be owned by Council), then the applicant should organise inspection with Council and pay Council the appropriate inspection fee. Inspection is to be carried out at the following specified stages:

 

·      Prior to backfilling of pipelines trenches.

·      Prior to backfilling of drainage connection to pipeline or channels.

·      Prior to casting pits and other concrete structures including kerb and gutter, aprons, pathways, vehicular crossings, dish crossings and pathway steps.

 

63.     Positive Covenant

 

A Restriction on Use of the land and Positive Covenant shall be created and registered on the title of the property, which places the responsibility for the maintenance of the on-site stormwater management system on the owner of the land. The terms of the instrument are to be generally in accordance with the Council’s standard terms and conditions for Restriction on Use of the land and Positive Covenant shown in Council’s Water Management Policy.

 

64.     Maintenance Schedule

 

A Maintenance Schedule for the proposed on-site stormwater management measures is to be prepared and submitted. The Maintenance Schedule shall outline the required maintenance works, how and when these will be done and who will be carrying out these maintenance works.

 

65.     Verification of Levels

 

For flood affected properties, a registered surveyor shall verify the levels of the design overland runoff path and finished floor levels to AHD and according the approved plans.

 

66.     Fire Safety Schedule

 

Certain items of equipment or forms of construction shall be nominated as "fire safety measures" within the building.

 

Upon completion of works, and before occupation of the building, each of the fire safety measures is required to be certified by an appropriately competent person (chosen by the owner of the building).  The certificate is to state that the measure was inspected and found to be designed, installed and capable of operating to a standard not less than that required by the relevant regulations.

 

Further, it is the responsibility of the owner of the building that each fire safety measure is again inspected and certified as to its condition every twelve (12) months following the submission to Council of the original certification.

 

67.     BASIX Completion Receipt

 

In accordance with clause 154C of the Environmental Planning and Assessment Regulation 2000, prior to issuing a final occupation certificate the certifying authority must apply to the Director-General for a BASIX completion receipt.

 

SECTION F – Prescribed Conditions

 

The following are prescribed conditions of development consent pursuant to s.80A(11) of the Environmental Planning and Assessment Act 1979 and cl.98 of the Environmental Planning and Assessment Regulation 2000.

 

68.       Compliance with the Building Code of Australia

 

The development must be carried out in accordance with the provisions of the Building Code of Australia.

 

69.     Insurance Requirements under Home Building Act 1989

 

The builder or person who does the residential building work must comply with the applicable requirements of Part 6 of the Home Building Act, 1989.  This means that a contract of insurance must be in force in accordance with Part 6 of that Act before any building work authorised to be carried out by the consent commences.

 

It is the responsibility of the builder or person who is to do the work to satisfy Council that they have complied with the applicable requirements of Part 6 of the Home Building Act, 1989.

 

If Council is the Principal Certifying Authority it will not carry out any inspections until a copy of the insurance certificate is received.

 

70.     Erection of Signs

 

A sign must be erected in a prominent position on any site on which building work, subdivision work or demolition work is being carried out:

 

(a)       showing the name, address and telephone number of the principal certifying authority for the work, and

(b)       showing the name of the principal contractor (if any) for any building work and a telephone number on which that person may be contacted outside working hours, and

(c)        stating that unauthorised entry to the work site is prohibited.

 

The sign is to be maintained while the building work, subdivision work or demolition work is being carried out, but must be removed when the work has been completed.

 

71.     Notification of Home Building Act 1989 Requirements

 

Residential building work within the meaning of the Home Building Act 1989 must not be carried out unless the principal certifying authority for the development to which the work relates (not being the council) has given the council written notice of the following information:

 

(a)       in the case of work for which a principal contractor is required to be appointed:

(i)      the name and licence number of the principal contractor, and

(ii)     the name of the insurer by which the work is insured under Part 6 of that Act,

 

(b)       in the case of work to be done by an owner-builder:

(i)      the name of the owner-builder, and

(ii)     if the owner-builder is required to hold an owner-builder permit under that Act, the number of the owner-builder permit.

 

If arrangements for doing the residential building work are changed while the work is in progress so that the information notified above becomes out of date, further work must not be carried out unless the principal certifying authority for the development to which the work relates (not being the council) has given the council written notice of the updated information.

 

72.     Shoring and Adequacy of Adjoining Property

 

If the development involves an excavation that extends below the level of the base of the footings of a building on adjoining land, the person having the benefit of the development consent must, at the person’s own expense:

 

(a)       protect and support the adjoining premises from possible damage from the excavation, and

 

(b)       where necessary, underpin the adjoining premises to prevent any such damage.

 

The above condition does not apply if the person having the benefit of the development consent owns the adjoining land or the owner of the adjoining land has given consent in writing to that condition not applying.

 

73.       Council Notification of Construction

 

The erection of a building which is the subject of a Development Consent must not be commenced until:

 

a)         Detailed plans and specifications of the building have been endorsed with a construction certificate by Council or an accredited certifier.

 

b)    the person having the benefit of the development consent has:

 

·    appointed a Principal Certifying Authority (PCA),and

·    notified Council (if Council is not the PCA) in writing of the appointment, and

·    given at least 2 days notice to Council of their intention to commence the erection of the building. The notice may be in writing or by phone.

 

SECTION G – Demolition Conditions

 

The following conditions are imposed to ensure the demolition associated with the proposed development is carried out having regard to relevant legislation and does not unreasonably impact on the amenity of the locality or environment.

 

74.     Demolition Conditions-Asbestos

 

(a)       Demolition of buildings where asbestos is determined to be present should only occur 7am – 5pm Monday to Saturdays, and must not occur on Sundays or Public Holidays, to ensure that the persons carrying out the work have access to WorkCover professionals if required.

 

(b)       All asbestos removal shall be undertaken in accordance with the requirements of WorkCover’s ‘How to Safely Remove Asbestos’ Code of Practice and Council’s Asbestos Policy.

 

(c)        Written notice must be provided to Georges River Council five (5) working days (excluding public holidays) prior to commencement of any works.

 

Written notice is to include the following details:

·    Date the demolition will commence

·    Name, address, contact details (including after hours) and licence number of the demolisher and asbestos removalist (if different)

 

Work must not commence prior to the nominated demolition date.

 

Note: it is the responsibility of the persons undertaking demolition work to obtain the relevant WorkCover licences and permits.

 

(d)       The owner is to notify all owners and occupiers of premises on either side, opposite and at the rear of the development site five (5) working days prior to demolition.  Such notification is to be clearly written on A4 size paper stating the date the demolition will commence and is to be placed in the letterbox of every premises (including every residential flat or unit, if any). The demolition must not commence prior to the date and time stated in the notification.

 

(e)       A demolition or asbestos removal contractor licensed under the Work Health and Safety Regulations 2011 must undertake removal of more than 10m2 of bonded asbestos (or otherwise specified by WorkCover or relevant legislation).

 

Removal of friable asbestos material must only be undertaken by a contractor that holds a current AS1 Friable Asbestos Removal Licence.

 

(f)        Demolition sites that involve the removal of asbestos must display a standard commercially manufactured sign containing the words ‘DANGER ASBESTOS REMOVAL IN PROGRESS’ measuring not less than 400mm x 300mm is to be erected in a prominent visible position on the site to the satisfaction of Council’s officers. The sign is to be erected prior to demolition work commencing and is to remain in place until such time as all asbestos has been removed from the site to an approved waste facility.

 

(g)       All asbestos waste must be stored, transported and disposed of in compliance with the Protection of the Environment Operations (Waste) Regulation 2005. All receipts detailing method and location of disposal must be submitted to Council as evidence of correct disposal.

 

(h)       A Clearance Certificate or Statement, prepared by a suitably qualified occupational hygienist must be provided to Council upon completion of demolition and asbestos related works, which confirms that the relevant legislative requirements in relation to safe removal and disposal have been satisfied.

 

(i)         A Work Cover Licensed Demolisher is to be engaged to carry out any demolition works using mechanical equipment where the structure is over 4 metres in height or to carry out any manual demolition works on a structure over 10 metres in height.

 

(j)         The provision of temporary fences and footpath crossing pads prior to commencement of demolition operations.  Further, no waste materials or bins are to be placed on Council's roadways or footpaths.

 

(k)        No waste materials are to be burnt on site.

 

(l)         No trees as defined by Council's Tree Preservation Order being removed or damaged on the site without the prior written approval of Council.

 

(m)      Compliance with the provisions of Australian Standard AS 2601-1991:"The Demolition of Structures", which requires notification of demolition to be submitted at least seven (7) days prior to demolition to the NSW Workcover Authority.

 

(n)       Effective erosion and sediment control measures are to be undertaken during the course of demolition and building works in accordance with Council’s ‘Environmental Site Management Policy’.  Failure to implement appropriate measures may result in a $750 Penalty Infringement Notice (individual) and/or $1,500 (corporation) being issued and/or the incurring of a maximum penalty of $250,000 (corporation) or $120,000 (individual) through the Land and Environment Court.

 

(o)       Appropriate measures are to be implemented on site to control dust and other air borne matter and demolition material is to be stored and stacked in a manner so as to minimise the risk of damage or nuisance to neighbouring properties.

 

(p)       Council being notified upon completion of the demolition works so that an inspection can be made of the roadway and footpath.

 

(q)       All non-recyclable demolition material being disposed of at an approved waste disposal depot. Details as to the method and location of disposal of demolition materials (weight dockets, receipts, etc.) should be kept as evidence of approved method of disposal.