AGENDA OF Development Assessment Committee 28 January 2004

HURSTVILLE CITY COUNCIL
CIVIC CENTRE, MACMAHON STREET, HURSTVILLE.
__________________________________

SUMMARY OF ITEMS TO BE ADDRESSED AT
THE DEVELOPMENT ASSESSMENT COMMITTEE MEETING
TO BE HELD ON 28TH JANUARY, 2004

Summary:
Item No: DAC001 - 04 - DEVELOPMENT APPLICATIONS - PENSHURST WARD
(Report by Director - Policy, Planning and Environment, Ms R Tyne)

Item No: DAC001.01 - 04 - 111-113 MORTS ROAD, MORTDALE - THREE SEPARATE
APPLICATIONS FOR ERECTION OF TWO ATTACHED DWELLING HOUSES ON SMALL LOT SITES AND DEMOLITION OF EXISTING TWO DWELLINGS
(Report by Consulting Town Planner, Mr S Flanagan)
DA 20030767, DA 20030768, DA 20030769

Item No: DAC002 - 04 - DEVELOPMENT APPLICATIONS - HURSTVILLE WARD
(Report by Director - Policy, Planning and Environment, Ms R Tyne)

Item No: DAC002.01 - 04 - 72 BASSETT STREET, HURSTVILLE - CONSTRUCTION OF A
SINGLE DWELLING HOUSE WITH A LARGE GARAGE
UNDER
(Report by Consulting Development Assessment Officer,
Mr B Hick) DA 20030696

Item No: DAC003 - 04 - DEVELOPMENT APPLICATIONS - PEAKHURST WARD
(Report by Director - Policy, Planning and Environment, Ms R Tyne)

Item No: DAC003.01 - 04 - 68 LLEWELLYN STREET, OATLEY - PROPOSED SWIMMING POOL BELOW SOUTHERN DWELLING OF DUAL OCCUPANCY UNDER CONSTRUCTION
(Report by Manager - Development Control, Mr G Young)
DA 20000689REV01

Item No: DAC003.02 - 04 - 7 STRINGYBARK PLACE, LUGARNO - SECTION 96
MODIFICATION APPLICATION TO DELETE A CONDITION OF APPROVAL REQUIRING COMPLIANCE WITH 9M
HEIGHT REQUIREMENT
(Report by Environmental Health and Building Surveyor,
Mr M Alexander) DA 20030013, AD 101/03

Item No: DAC003.03 - 04 - 136 MI MI STREET, OATLEY - CONSTRUCTION OF
COLOURBOND BOUNDARY FENCE TO THE WESTERN AND NORTHERN BOUNDARIES
(Report by Manager - Development Control, Mr G Young)
DA 20030951

Item No: DAC003.04 - 04 - 40 BLACKBUTT AVENUE, LUGARNO - DEMOLITION OF EXISTING DWELLING AND ERECTION OF ATTACHED
DUAL OCCUPANCY WITH TORRENS TITLE SUBDIVISION
(Report by Consulting Town Planner, Mr S Flanagan)
DA 20030937

Item No: DAC003.05 - 04 - 8 BARRY AVENUE, MORTDALE - RENEW DEVELOPMENT
CONSENT FOR THE CONTINUED USE OF A FACTORY UNIT FOR THE PURPOSE OF STEEL FABRICATION
(Report by Development Assessment Officer, Mr M Tempest)
DA 20030978

Item No: DAC003.06 - 04 - 1 GUNGAH BAY ROAD, OATLEY - SECTION 96
APPLICATION TO MODIFY CONDITIONS OF CONSENT
FOR RECENTLY APPROVED DUAL OCCUPANCY
DEVELOPMENT
(Report by Manager - Development Control, Mr G Young)
DA 20030594 Rev 01

___________________________________________________________________________
Meeting No. 1 to be held on 28th January, 2004

HURSTVILLE CITY COUNCIL

CIVIC CENTRE, MACMAHON STREET, HURSTVILLE 2220

21 January, 2004

His Worship the Mayor and the Councillors

Dear Member,

I am directed to inform you that a meeting of the DEVELOPMENT ASSESSMENT COMMITTEE will be held at the Civic Centre, Hurstville, on WEDNESDAY, 28 JANUARY 2004 at 7.15p.m. (at the conclusion of the Special Council Meeting) for consideration of the business mentioned hereunder.

Yours faithfully,

GENERAL MANAGER

B U S I N E S S:

5.30 p.m. Dinner

7.15 p.m. 1. Apologies

2. Disclosure of Interest

3. Confirmation of Minutes of Committee Meeting held on 3/12/03

4. Consideration of reports submitted by the:

Director – Policy, Planning & Environment

COMMITTEE MEMBERSHIP: QUORUM: 7

Full Council

Meeting Date: 28/01/2004

DAC001.01 - 04
111-113 MORTS ROAD, MORTDALE - THREE SEPARATE
APPLICATIONS FOR ERECTION OF TWO ATTACHED DWELLING
HOUSES ON SMALL LOT SITES AND DEMOLITION OF EXISTING
TWO DWELLINGS

APPLICANT
DA 20030767 - JD Kaplanis, DA 20030768 - M Palasovski,
DA 20030769 - M Mikelsons

PROPOSAL
Three Applications for Erection of Attached Dual Occupancies
on Small Lot Sites and Demolition of Existing Two Dwellings

ZONING
Zone 2 - Residential

APPLICABLE PLANNING INSTRUMENT/S
Hurstville Local Environmental Plan 1994, Development Control
Plan No 10 - Small Lot Housing

HURSTVILLE LOCAL ENVIRONMENTAL PLAN 1994 INTERPRETATION OF USE

OWNERS
DA 20030767 - JD Kaplanis and M Palasovski, DA 20030768 -
JD Kaplanis, M Palasovski, N Kaplanis and K Mikelsons,
DA 20030769 - N Kaplanis and K Mikelsons

EXISTING DEVELOPMENT
Two single storey dwellings

COST OF DEVELOPMENT
$350,000.00 each DA

REASON FOR REFERRAL TO COUNCIL
Non compliance with DCP No 10

REPORT AUTHORS
Consulting Town Planner, Mr S Flanagan

FILE NO
DA 20030767, DA 20030768, DA 20030769

EXECUTIVE SUMMARY

1. Consent is sought for three separate applications for two attached dwelling houses on adjoining small lots at 111-113 Morts Road, Mortdale, resulting in six (6) dwelling houses on six (6) separate small lots. As the applications are almost identical and are next to each other, they have been dealt with as one (1) report.

2. The proposed development does not comply with the setback provisions in the Development Control Plan No 10 - Small Lot Housing, however after consideration under Section 79C(1) of the Environmental Planning and Assessment Act, 1979 (as amended), the application is considered acceptable in view of the small size of the lots. Conditions of consent will require compliance with the height controls of Development Control Plan No 10.

3. No neighbour objections were received within the notification period.

RECOMMENDATION

THAT the applications be approved in accordance with the conditions included in the report.

___________________________________________________________________________

REPORT DETAIL

SITE AND SURROUNDING DEVELOPMENT

The development sites in question are located on the western side of Morts Road, adjacent to the junction with Kemp Street and face east. The six (6) lots are currently occupied by two (2) single storey dwellings, occupying three (3) lots each. The southern boundary of lot no. 1 adjoins Kemp Street. Adjacent to the northern boundary of lot no. 6 is an existing single storey dwelling with an attached commercial unit facing Morts Road, occupied by a hairdressing business. A reserve of Council open space with a children’s play area adjoins the rear portion of the northern boundary of lot no. 6. To the west of the sites, behind the rear boundary is an existing single storey house facing Kemp Street. The existing dwelling which occupies lots 1 to 3 has a rear access onto Kemp Street. Detached single storey houses predominate in the area however there are also some dual occupancies present.

The sites fall up to 2m from front to rear and approximately 0.5m from south (lot no. 1) to north (lot no. 6). The ground level drops approximately 0.5m between the public ground at the front of the site and the site levels at the southern end of the site frontage and by approximately 1.0m at the northern end.

The details of the sites are as follows:

Application no.	Site	Area	Frontage	Length	Proposed floor area	Proposed ground floor level
20030767	Lots 1 & 2	417.4sqm	12.49m	33.53m	259.6sqm	30.445m
20030768	Lots 3 & 4	408.8sqm	12.19m	33.53m	246.8sqm	30.350m
20030769	Lots 5 & 6	408.8sqm	12.19m	33.53m	257.6sqm	30.295m

PROPOSED DEVELOPMENT

The three (3) applicants each propose to develop a two dwelling houses sharing a common wall, each on a separate small lot (see above table for proposed floor areas and proposed floor levels).

Each dwelling house has a garage and living accommodation on the ground floor with there (3) bedrooms at first floor level. Design differences between the houses are minor. The dwelling houses on lots 1 and 2 and lots 5 and 6 have garages located between the entrances to the dwellings, lots 3 and 4 have the entrances to the dwellings located at the centre with the garages at either side. Lot no. 1 which adjoins Kemp Street will have a rear access onto Kempt Street.

STATUTORY REQUIREMENTS

The development has been inspected and assessed under the relevant Section 79C(1) "Matters for Consideration" of the Environmental Planning and Assessment Act 1979 and against the provisions of the development control plan for the area, Development Control Plan No 10 - Small Lot Housing.

ASSESSMENT OF DEVELOPMENT

The site is suitably zoned Residential in Hurstville Local Environmental Plan 1994 where small lot housing are a permitted development. Development Control Plan No 10 - Small Lot Housing applies to the area. A compliance matrix in relation to the proposed dwelling houses with the development controls for two (2) storey semi-detached houses is set out below.

DCP 10 Control	Application	Standard	Proposed	Complies
Min. front setback	20030767 20030768 20030769	5.5m 5.5m 5.5m	5.5m to face of garage door, 5.0m to garage front wall. 5.5m to face of garage door, 4.5m to front entry. 5.5m to face of garage door, 5.0m to garage front wall.	No (1) No (1) No (1)
Min. rear setback	20030767 20030768 20030769	12.0m 12.0m 12.0m	10.03m 10.03m 10.03m	No (1) No (1) No (1)
Min. side setback	20030767 20030768 20030769	1.0m + 2.5m x 4m courtyard 1.0m + 2.5m x 4m courtyard 1.0m + 2.5m x 4m courtyard	1.0m 3m x 1.5m 1.0m 3m x 1.5m 1.0m 3m x 1.5m	Yes No (1) Yes No (1) Yes No (1)
Second storey rear setback	20030767 20030768 20030769	3 – 5m 3 – 5m 3 – 5m	2.5m 2.0 m 2.6m	No (1) No (1) No (1)
Max FSR	20030767 20030768 20030769	0.65:1 0.65:1 0.65:1	0.62:1 0.60:1 0.63:1	Yes Yes Yes
Max. external wall height	20030767 20030768 20030769	6.0m 6.0m 6.0m	6.5m 6.5m 6.6m	No (2) No (2) No (2)
Max. ridge height	20030767 20030768 20030769	9.0m 9.0m 9.0m	9.3m 9.0m 9.3m	No (2) Yes No (2)
Roof pitch	20030767 20030768 20030769	25 – 35 deg 25 – 35 deg 25 – 35 deg	25 deg 25 deg 25 deg	Yes Yes Yes
Parking	20030767 20030768 20030769	Garage + driveway Garage + driveway Garage + driveway	Garage + driveway Garage + driveway Garage + driveway	Yes Yes Yes

It can be seen that in terms of setbacks, external wall heights and in the case of two (2) of the proposed developments, ridge heights, the applications do not conform to the controls set out in Development Control Plan 10.

(1) Front, rear and second storey setbacks

Small lot housing sites on Kemp Street are typically between 36m and 37m in length, the small lot sites facing Morts Road are shorter being only 33.5m long. It is therefore considered that the applicants’ proposals for 10m rear setback and reduced second storey setbacks, while being short of the Development Control Plan control can be accepted in this instance due to the smaller size of the sites. Small lot housing developments with similar reduced setbacks and courtyards have been permitted at 85, 87 and 101 Morts Road.

In relation to the front setback, the applicants’ proposals do not fully comply with the 5.5m front building setback, however the applications provide for a 5.5m long car parking space in front of the garage and are considered to comply with the spirit of the Development Control Plan control.

(2) Wall and ridge heights

In relation to wall and ridge heights, the proposed development sites are at a lower level than the adjacent public road and fall from front to back by up to 2 meters. The external wall heights at the front elevation are within the limits of the Development Control Plan control but exceed the control towards the rear where the ground level falls. A condition of consent can be imposed to reduce the height of the external walls and subsequently the roof ridge level by one or more of the following means:

a) The driveway slope can be increased to 1 in 8, the maximum permitted by Development Control Plan No 2 without the use of transition slopes.

b) The floor levels of the rear part of the dwellings can be reduced; this will require the houses to be stepped from front to rear.

c) The floor to ceiling height for the ground floor habitable rooms could be reduced to 2.7m.

LIKELY IMPACTS OF THE DEVELOPMENT

It is not considered that the proposed development will result in any significant negative impacts which would affect the amenities of properties in the area.

Overlooking
Overlooking of adjoining properties is not considered excessive. The property at 115 Morts Road, located to the north, will have five (5) small high level windows serving bedrooms and a bathroom window facing over its private open space. This is considered acceptable and no objection to the proposed development has been received. There are no opposing standard height bedroom windows proposed amongst the dwelling houses.

Overshadowing
Shadow diagrams submitted with the applications illustrate that there will be morning shadow on the private open space at the front and at the rear of the adjoining property to the west at 2 Kemp Street. The shadow diagrams illustrate however that there are 3 hours of sunlight available to the property at mid-winter. The private open space to the rear of lots 1 to 5 will be in shadow during the morning, however from the early afternoon onwards, most of their rear private open space will receive at least 3 hours of sunlight.

Visual impact
The elevation drawings indicate that the proposed external finishes consist of brick and rendered facades and black roof tiles. It is considered that these are compatible with existing development in the area.

DIVISIONAL REFERRALS

Manager - Development Advice

DA20030767
Manager – Development Advice recommends that all stormwater must drain to Kemp Street, that stormwater drainage plans be prepared and submitted by a suitably qualified engineer, that new vehicle crossings to Council standard be constructed, that access levels be agreed, that an easement be provided to drain stormwater from units 3 to 6 to Kemp Street, that the applicant must dedicate the corner of the site 1.5m x 1.5m for road widening and that condition relating to fencing and unit numbering be imposed.

DA20030768
Similar conditions to DA20030767 above, stormwater must drain through an easement to Kemp Street, that a drainage easement must be created over the sites to serve lots 5 and 6.

DA20030769
Similar conditions to DA20030767 and DA20030768, that if the power pole is to be relocated that the developer bear the expense and carry out the works to the service providers standard, recommends that access close to bend be referred to traffic (it is considered that the proposed entrance close to a bend on Morts Road is acceptable).

The above can be included in the conditions of consent.

Building Services

Building Services recommend standard conditions for small lots be imposed.

Tree Preservation Officer

Tree Preservation Officer states that it is acceptable to remove a Cypress Pine from the front corner. There are no other significant trees on the sites. Two (2) Brushbox street trees are to be retained with no driveway excavation or construction within 2m.

This can be included as a condition of the consent.

PUBLIC NOTIFICATION AND COMMENT

Adjoining residents were notified by letter and given fourteen (14) days in which to view the plans and submit any comments on the proposal.

No objections to the development have been received.

SUMMARY

The three (3) development applications for two attached dwelling houses on small lots are considered acceptable after consideration under Section 79C(1) of the Environmental Planning and Assessment Act 1979 (as amended). No neighbour objections have been received. The development applications do not comply with controls set out in Development Control Plan No 10 in relation to front, rear and second storey setbacks, and height. It is considered that in view of the fact that the sites in question are 3m shorter than typical small lot sites in the area that the rear and second storey setbacks be accepted as proposed, conditions of consent will require the wall and ridge heights to comply with Development Control Plan No 10.

RECOMMENDATION

THAT, pursuant to the powers vested in Council under section 80(3) of the Environmental Planning and Assessment Act, 1979 (as amended), the Council, as consent authority, grant a consent under DA 20030767, DA 20030768 and DA 20030769 for the demolition of existing dwellings and the erection of three (3) separate application for two attached dwelling houses on small lots on land known as Lots 1-6, DP 3181, 111-113 Morts Road, Mortdale, subject to the conditions detailed below.

1. The standard conditions for small lot housing developments.

2. The height of the external walls of the dwellings and the roof ridge shall comply with the controls set out in Development Control Plan No 10, namely external walls shall be a maximum of 6m in height and the ridge level shall be a maximum of 9m in height. The height of the proposed external walls and the height of the roof ridge may be reduced by one or more of the following means to achieve compliance:

a) The driveway slope may be increased to 1 in 8, the maximum permitted by Development Control Plan No 2 without the use of transition slopes.

b) The floor levels of the rear part of the dwellings may be reduced; this will require the houses to be stepped from front to rear.

c) The floor to ceiling height for the ground floor habitable rooms may be reduced to 2.7m.

3. An easement for the drainage of stormwater shall be provided across Lots 1 to 4 to drain all stormwater to Kemp Street.

4. Standard condition to retain Council street tree.

5. Standard engineering conditions

* * * * *

APPENDIX

COMMITTEE'S DECISION

THAT the applications be approved in accordance with the conditions included in the report, subject to a further condition requiring the boundary fence along the side elevation to Kemp Street to be designed to discourage graffiti.

(Moved Clr S McMahon/Seconded Clr B Giegerl)

Meeting Date: 28/01/2004

DAC002.01 - 04
72 BASSETT STREET, HURSTVILLE - CONSTRUCTION OF A
SINGLE DWELLING HOUSE WITH A LARGE GARAGE UNDER

APPLICANT
Nick and Valentina Tolevski

PROPOSAL
Construction of a Single Dwelling House with a Large
Garage Under

ZONING
Zone 2 - Residential, Development Area B

APPLICABLE PLANNING INSTRUMENT/S
Hurstville Local Environmental Plan 1994, Code for Single
Dwelling Houses

HURSTVILLE LOCAL ENVIRONMENTAL PLAN 1994 INTERPRETATION OF USE

OWNERS
Nick and Valentina Tolevski

EXISTING DEVELOPMENT
Vacant allotment

COST OF DEVELOPMENT
$130,000.00

REASON FOR REFERRAL TO COUNCIL
Non compliance with Code and one objection letter received

REPORT AUTHORS
Consulting Development Assessment Officer, Mr B Hick

FILE NO
DA 20030696

EXECUTIVE SUMMARY

1. The application is for the construction of a single storey dwelling house with garage, gymnasium and storage area under.

2. The building generally complies with Council's Code for Single Dwelling Houses with the exception of required landscape area.

3. One (1) submission was received.

RECOMMENDATION

THAT the application be deferred for redesign in accordance with the full recommendation to this report.

___________________________________________________________________________

REPORT DETAIL

SITE AND SURROUNDING DEVELOPMENT

The site is a narrow allotment (11.430m) on the north eastern side of Bassett Street situated between Ruby and Dudley Streets. It is a vacant property with two substantial Camphor Laurel trees towards the rear of the site.

To the left (north west) of the site a single storey weatherboard dwelling exists of similar design to that removed from the subject site. There is a villa development to the right (south east) of the site.

PROPOSED DEVELOPMENT

It is proposed to construct a single storey dwelling with a large garage area, office, gymnasium and storage area under.

A ramp access to the front of the dwelling has been provided to assist a disabled member of the family.

The dwelling provides four bedrooms, bathroom, wc, laundry, kitchen, study, lounge room, dinning room and family room and open verandah has been indicated at the rear northern corner.

A separate cabana and BBQ outbuilding is proposed at the rear of the site.

STATUTORY REQUIREMENTS

The proposal is permissible in the zoning provisions of Hurstville Local Environmental Plan 1994 and generally complies with the requirements of the Code for Single Dwelling Houses.

The proposal has also been assessed under the relevant Section 79C(1) – ‘Matters for Consideration’ of the Environmental Planning and Assessment Act, 1979, and found to be deficient in landscape area and therefore cannot be recommended for approval.

ASSESSMENT OF DEVELOPMENT

The proposal has been assessed under the provisions of Council's Code for Single Dwelling Houses and a summary of compliance with the technical requirements follows.

Code for Single Dwelling Houses	Required	Proposed	Complies
Site width		11.430m
Site area		556.75sqm
Clause 3.3.3	1.5m setback	1m	Yes
Landscape area	50%	40.36%	No (1)
Height	9m	5.5m	Yes
Side boundary setback	0.9m or 1.5m	1.0m	Yes
Front boundary setback	4.5m	7.5m	Yes
Solar access	4hrs of yard area access	Single storey complies	Yes
Car parking	2 behind building alignment	> 2 cars	Yes

The proposal generally complies with the one exemption being the required 50% landscape area for Development Area B. A landscape area of 39% has been provided in the design submitted. (As calculated by Council's Officer and 40.36% as calculated from submitted information, plan 7.)

PUBLIC NOTIFICATION AND COMMENT

Sixteen (16) adjoining residents were notified by letter and given fourteen (14) days in which to view the plans and submit comments on the proposal. One (1) submissions was received and is summarised with comment as follows.

‘1) They will be digging for the garage level. This could cause the fence line to collapse. The fence is a 6 foot permaclad fence that has another 20 years life. Who is responsible for this?’

Comment: The approval would be conditioned to give the adjoining owners ample warning of excavation and steps taken to minimise any possible damage. Also the excavation would be some 750mm from the fence line.

‘2) The size of the house in length is nearly double the length of my house with a shed at the back. Is that an acceptable size for the area we live in?’

Comment: This is considered a valid concern.

‘3) The house is 0.9 metres from the side fence. My house is very close to that side fence. Surely we can have a little more distance. How does any light get through?’

Comment: This setback is allowed and has been standard building procedure for at least 50 years. A 900mm setback complies with the requirements of the Building Code of Australia and Council's Code for Single Dwelling Houses.

‘4) Are the windows opposite our windows frosted?’

Comment: This can be conditioned to be obscured glass.

‘5) Can there be extra height put on the fence, perhaps a foot of lattice for privacy.’

Comment: This can be conditioned if considered necessary.

‘6) Can there be a privacy screen on the balcony.’

Comment: Yes.

‘7) How can we prevent the builders from destroying my front garden and fence?

8) How can we prevent concrete from landing on my house?

9) Can we not do acid wash on the side that effects the house on my house, effects the concrete and the garden?

10) How can I kept the builders off my fence/front yard?

11) I notice at least three trees being cut down. What trees will be replaced?’

Comment: All building work is to be completed in accordance with Council's requirements and is to remain wholly within the subject site. These concerns 7)-11) are not planning issues which can be dealt with in determining this application.

TREE REMOVAL

Permission to remove two (2) Camphor laurel trees was refused by Council’s Tree Preservation Officer, however the Hurstville Ward Councillors agreed that the two (2) trees could be removed. This agreement was conditioned on the boundary fence repairs being resolved before the tree removal.

SUMMARY

The proposed development is considered to be unsatisfactory due to the 11% shortage in the required landscape area for the development, that is 61sqm.

Two letters of support for the family have been received itemising the need for even surfaces so as to aid easier walking with walking frames.

‘

Letter from Eileen O’Neill, Physiotherapist

I am writing to provide support for Mr and Mrs Tolevski’s DA. Their son, Michael, suffers from cerebral palsy and I have been treating him for the past two years. Michael requires the aid of a walking frame to mobilise and has great difficulty managing uneven surfaces. He requires ramp access to the house and has large equipment which must be kept within the house. For this reason, Mr and Mrs Tolevski have designed a house with open areas and included ramp access. They have included a large verandah in the plans as this will allow Michael a large area to play and move about in his frame. As with all children, fitness is very important for children with cerebral palsy. Unfortunately the space involved for children with cerebral palsy must larger if they require frames. The area also needs smooth, even surfaces. I fully agree with the principle of maintaining landscaped areas in residential zones, but I believe that the enforcement of this policy in the Tolevski’s DA would be discriminatory against Michael as he would be unable to access these areas. For this reason I fully support Mr and Mrs Tolevski’s DA with slightly reduce landscape areas.’

‘

Letter from Dr Kevin Low, Consultant in Rehabilitation Medicine

Michael has a diplegic type of cerebral palsy. He attends the Sydney Children’s Hospital and my private rooms. Michael requires disabled access in order to maximise his independent mobility. I would appreciate any assistance you can give the family in the design of alterations to their family home.’

Council has not tried to limit the space available within the dwelling however, it must be recognised that a single storey dwelling has a larger footprint than a two storey dwelling.

Efforts to negotiate deletion of the outbuilding and BBQ areas have not been successful. If these areas, which are remote from the dwelling and not reasonably accessible by walking frames, were reduced or deleted a reasonable landscape area could be achieved. It has been suggested to the applicant that a landscape area of 45% of the allotment would be supported as the building is technically a single storey structure. There is a warrant for this proposition as the Interim Residential Development Code requires only 45% landscape are for single storey villa developments.

RECOMMENDATION

THAT the applicant be advised that Council will give favourable consideration to the approval of a single storey dwelling development which achieves a landscape area equivalent to 45% of the allotment area and to the removal of the two large camphor laurel trees in the rear yard.

It is further recommended that amended plans comply with the above requirement be submitted within a period of two months, otherwise the application be determined as refused and a fresh application be required for any dwelling proposal on the premises.

* * * * *

APPENDIX

COMMITTEE'S DECISION

THAT the application be deferred for redesign to achieve a landscape area equivalent to 45% of the allotment area, to the satisfaction of Council Officers.

THAT the two camphor laurel trees in the rear yard be permitted to be removed, subject to the fence being repaired by the applicant to Council's satisfaction.

FURTHER, THAT the General Manager be granted delegated authority to approve the application, subject to conditions.

(Moved Clr M Lynch/Seconded Clr B Giegerl)

Meeting Date: 28/01/2004

DAC003.01 - 04
68 LLEWELLYN STREET, OATLEY - PROPOSED SWIMMING POOL BELOW SOUTHERN DWELLING OF DUAL OCCUPANCY UNDER CONSTRUCTION

APPLICANT
S Nasser

PROPOSAL
Proposed Swimming Pool Below Southern Dwelling of Dual
Occupancy Under Construction

ZONING
Zone 2 - Residential (Foreshore)

APPLICABLE PLANNING INSTRUMENT/S
Hurstville Local Environmental Plan 1994, IRDC

HURSTVILLE LOCAL ENVIRONMENTAL PLAN 1994 INTERPRETATION OF USE

OWNERS
S Nasser

EXISTING DEVELOPMENT
Vacant site with boatshed

COST OF DEVELOPMENT
$20,000.00

REASON FOR REFERRAL TO COUNCIL
Receipt of neighbour objections

REPORT AUTHORS
Manager - Development Control, Mr G Young

FILE NO
DA 20000689REV01

EXECUTIVE SUMMARY

1. The proposal is to gain consent for a swimming pool beneath the ground floor of the southern dual occupancy dwelling to be constructed on the subject allotment.

2. Excavation work is in progress for the dual occupancy dwelling.

3. Excavation for the pool area has been carried out without development consent (part completed represents about 66% of necessary excavation).

4. Proposal is considered to be a valid Section 96(2) application.

5. Objections by neighbours are essentially about the past history and objection to further Section 96 being allowed.

6. This application was 'called over' from the DAC Delegation of 17 December 2003.

RECOMMENDATION

THAT Council grant consent to the application in accordance with the recommendation to this report.

THAT a Penalty Infringement Notice be served on the owner/builder for carrying out excavation beyond that provided for in the consent.

___________________________________________________________________________

REPORT DETAIL

BACKGROUND

This application was 'called over' from the DAC Delegation of 17 December 2003, by four (4) Councillors because it was considered that the matter should be dealt with in an open meeting of the Council.

A brief history of the applications by Mr Nasser for the subject allotment is outlined below.

Approval Date Development

1 Nov 00 Dual occupancy

21 Feb 01 Subdivision of allotment 68 Llewellyn Street into three (3) lots

20 Jun 01 Section 96 application to amend Condition 10C

31 Jul 02 Section 96 application to modify approved dual occupancy

6 Aug 03 Section 96 application to further modify dual occupancy

Current Section 96 application to incorporate a swimming pool beneath the southern dwelling

SITE AND SURROUNDING AREA

The site is a waterfront battleaxe allotment which is currently being excavated in the area of the proposed building. To the north of the site is a large dwelling house number 66 Llewellyn Street and to the south is a modest fibro dwelling number 70 Llewellyn Street. The two allotments excised from the original allotment No 68 are being developed with two storey dwellings in an advanced stage of construction. Since the reference of this report as a DAC Delegation matter the concrete floor slab for the lower ground storey of the northern dwelling has been placed. No further excavation of the area in which the swimming pool is proposed has been done.

PROPOSAL

It is proposed to construct a swimming pool of irregular shape with a dimension of 10.7m on one side and 5.3m on the opposite side and having a maximum width of 4.2m for part of its length. This pool is proposed to be erected in the foundation area beneath the southern dwelling with an open elevation facing the west or river side elevation. To construct the pool the removal by excavation of approximately 150 cubic metres of rock and soil, mostly rock will be necessary. The applicant has removed approximately 100 cubic metres of this material in anticipation of approval. Only about 50 cubic metres of rock remains to be removed.

The ‘over excavation’ and removal of approximately 100 cubic metres of rock and soil without the consent of Council has lead to a great deal of angst amongst the neighbours. The applicant has however had the advice of a consulting Geotechnical Engineer and his own Structural Engineer who have identified the need for some of the ‘floater’ rocks in this area to be removed however it is apparent that much of the excavation has been done in solid bed rock.

STATUTORY REQUIREMENTS

The proposal is permissible in the zoning provisions of Hurstville Local Environmental Plan 1994 and does not contravene any of the IRDC requirements. The Swimming Pool Act 1991 also applies.

Landscape plans showing an external pool were rejected by Council’s Officers as the required landscape compliment on site could not be satisfied.

The proposal has also been assessed under the relevant Section 79C(1) – ‘Matters for Consideration’ of the Environmental Planning and Assessment Act 1979.

ASSESSMENT OF DEVELOPMENT

The proposal is contained wholly within the envelope of the approved building. The swimming pool is to be situated below the ground floor level of the southern dwelling (RL 16.9) with the base of the pool being at approximately RL 12.78. If this area were to remain unexcavated there would be a void of approximately 2.2 to 1.5 metres below the underside of the ground floor slab. This void was to be closed off with a solid wall on the western elevation.

The applicant’s proposal is to excavate down to approximately to RL 12.8 and replace the excavated material with a swimming pool structure. Instead of a solid foundation wall on the western elevation there will be a solid infill wall to the pool coping and a glass balustrade to the edge of the coping with the remainder open to the underside of the ground floor slab.

The area of the pool is not enclosed by walls and is accessible only from the outside of the building. The proposal is a recreational facility and does not constitute as floor space.

Because the proposal is on a waterfront allotment the pool is not required to be enclosed with fencing and self closing gate. The applicant has however advised that it is their intention to secure the pool from unauthorised access.

Consideration has been given to the impact of this proposal upon the amenity of the neighbours and to the issues listed in Clause 19B(4) of the Hurstville Local Environmental Plan. It is concluded that the inclusion of a swimming pool beneath the building is an acceptable proposal and will not be adverse to the foreshore setting or to the neighbours.

REFERRALS

No internal or external referrals of this application are required as the proposal is within the footprint of the approved building.

PUBLIC NOTIFICATION AND COMMENT

The proposal was notified in accordance with the provisions of the Environmental Planning and Assessment Act and Council’s Neighbour Notification Policy Development Control Plan 17. A total of twenty two (22) letters were forwarded to local owners/residents with the notification period expiring on 28 November 2003.

Responses from the following persons were received by Council.

Four (4) Letters of Objection signed by:

C Miehs 66 Llewellyn Street
R & D Davis 31 Southern Street
D & R Jones 64A Llewellyn Street
P Goh 51 Llewellyn Street

One (1) Letter of Objection signed by:

R & L Christian 35 Southern Street
D & R Jones 64A Llewellyn Street
R Mathews 53 Llewellyn Street
G Tuffy 53 Llewellyn Street
N & Y Hunt 55 Llewellyn Street
W & J Francis 70B Llewellyn Street
C & F Miehs 66 Llewellyn Street
J & R Farquhar 64 Llewellyn Street

One (1) Letter of Comment:

A & K Southall 70 Llewellyn Street

The objections to the proposal are summarised below.

1. The proposal should not be a Section 96 application.

2. Using the “natural depression” and minimum excavation was fundamental to the consent.

3. The applicant’s Engineers have misinformed Council regarding the rock formation on the site and the need to excavate.

4. The drawings are inaccurate.

5. The proposal does not comply with the IRDC or the procedural requirements for DA’s as a Section 96 application.

6. The proposals require alteration to floor levels of the southern most dual occupancy.

7. The pool may create an acoustic intrusion to neighbours.

8. Excavation has been done without Council approval and applicant confident of Council approval.

9. More bulk to foreshore appearance.

10. Proposal breaks every rule regarding preservation of foreshores.

11. Sediment control – a disgrace.

12. Fee paid only for a minor modification.

13. Ceiling height for pool too low and could be reason for further modification.

14. Dual occupancy on a battleaxe block is illegal!!

15. Councillor Nasser mislead a group of sixteen (16) neighbours that there would be no subdivision following the approval of the Dual Occupancy.

16. Houses now dominate where majestic trees once stood.

17. Three storey dwelling not permissible under IRDC.

18. 300 cubic metres of rock has been removed without consent to create a “non approved lower ground floor”.

Comment on Objections

The objectors have vented their anger regarding the development of this site with a dual occupancy building followed by the subdivision of the land. They are also concerned that the building form has been amended and is still being amended.

Whilst the drawings are not detailed they are sufficient for consent purposes. Much more detailed drawings will be required for Construction Certificate approval. The pool area will be confined to the footprint of the building and the only further excavation required (approximately 50 cubic metres) will be limited in extent by the location of the main sewer which passes under the building.

I am satisfied that the proposal may be considered as a Section 96 application as the building is essentially the same building. The fee charged is based on a construction cost of $20,000.00 for the pool.

The neighbour at 70 Llewellyn Street does not object to the proposal but has made the comment that the pool filter should be located so that they are not disturbed by noise.

The other concerns expressed by the neighbours are about abuse of process and relate to the past applications and history of this site. It is nevertheless true that Councillor Nasser has over-excavated the site area below the southern dwelling seeing the opportunity to place a swimming pool in this location. His earlier proposal to put a pool in the landscape area was rejected. It must be said however that Councillor Nasser ceased further excavation under the southern dwelling, when instructed to do so, and then lodged an application for approval.

Inspection of the plans reveals that there should be a height of approximately 3.9m between the bottom of the pool and the underside of the ground floor slab. Provided the pool is limited to a depth of approximately 1.5m there should be ample height and no need for further amendment of the proposal.

SUMMARY

The proposal is the third amendment to the building form since the original Development Application was granted by Council.

The proposal does not increase the external envelope of the approved building and results only in a variation to the western façade i.e. presentation of open wall area between pool coping level and ground floor slab.

The objections to the specific proposal may be considered as unfounded as they relate mainly to past determinations. I am also confident that this proposal is a valid Section 96(2) matter.

The question of unauthorised excavation is a separate issue and is proposed to be dealt with as a Penalty Infringement Notice. The building works are being kept under surveillance and separate orders and Penalty Infringement Notices have been issued regarding non-compliance with conditions of Consent.

RECOMMENDATION

THAT pursuant to powers vested in Council by Section 80(1) of the Environmental Planning and Assessment Act, 1979 (as amended), the Council, as consent authority, approve amended DA 20000689-REV 01 for the incorporation of a swimming pool beneath the ground floor of the southern dual occupancy dwelling on land known as Lot 3, DP 1038944, 68 Llewellyn Street, Oatley, subject to the following conditions additional to the consent conditions already imposed.

1. The swimming pool coping level shall be a minimum of 2.3m below the ground floor slab of the southern dwelling. No raising of the ground floor slab to accommodate this requirement is to be allowed.

2. The western façade of the building between the pool coping and the underside of the ground floor slab shall remain permanently open except for the balustrade.

3. The Construction Certificate shall detail the location and specification of the pool pump and filter and any pool water heating plant. Such equipment shall be located internally and any noise generated by such equipment shall not be audible at the boundary of any neighbouring premises.

4. The standard conditions for swimming pools as imposed by Council.

IT IS FURTHER RECOMMENDED THAT the owner/builder Mr S Nasser be issued with a Penalty Infringement Notice for Development Carried Out Without Development Consent where Development Consent is required (Section 76A and 125 of the Environmental Planning and Assessment Act).

* * * * *

APPENDIX

COMMITTEE'S DECISION

THAT the application be deferred for an on-site inspection by Ward and interested Councillors.

FURTHER, THAT Council seek a detailed response from the Council Officers in regard to the issues raised by Maddocks Solicitors (acting for the objectors), and the issues raised by Deacons Solicitors (acting for Council).

(Moved Clr M Frawley/Seconded Clr W Pickering)

Meeting Date: 28/01/2004

DAC003.02 - 04
7 STRINGYBARK PLACE, LUGARNO - SECTION 96 MODIFICATION APPLICATION TO DELETE A CONDITION OF APPROVAL REQUIRING COMPLIANCE WITH 9M HEIGHT REQUIREMENT

APPLICANT
Tony Hallasso

PROPOSAL
Section 96 modification application to delete condition of approval

ZONING
Zone 2 - Residential

APPLICABLE PLANNING INSTRUMENT/S
Hurstville Local Environmental Plan 1994, Code for Single
Dwelling Houses

HURSTVILLE LOCAL ENVIRONMENTAL PLAN 1994 INTERPRETATION OF USE

OWNERS
Tony and Ranoa Hallasso

EXISTING DEVELOPMENT
Vacant lot

COST OF DEVELOPMENT
$350,000.00

REASON FOR REFERRAL TO COUNCIL
Non compliance with Code

REPORT AUTHORS
Environmental Health and Building Surveyor, Mr M Alexander

FILE NO
DA 20030013, AD 101/03

EXECUTIVE SUMMARY

1. This report relates to a Section 96 Modification application to delete a condition of approval requiring compliance with the 9 metre height requirement.

2. This report provides an assessment of the development application with respect to the requirement.

RECOMMENDATION

THAT the application be approved in accordance with the conditions included in the report.

___________________________________________________________________________

REPORT DETAIL

SITE AND SURROUNDING DEVELOPMENT

The subject premise is Lot 9 of a recent nine (9) lot subdivision of 63-67 Woodlands Avenue Lugarno. The site is known as 7 Stringybark Place Lugarno.

The site is located on the southern side of Woodlands Avenue, adjacent to the Georges River. The site falls towards the Georges River with an approximate grade of 1:4.

The land has an uneven sandstone boulder surface with vegetation consisting mainly of native tress and shrubs. The majority of trees exist to the lower escarpment level.

The site dimensions are 14.060m x 119.470m.

BRIEF HISTORY AND PROPOSED DEVELOPMENT

The subject site is Lot 9 as part of approval DA 20000177 for the torrens title subdivision of land known as 63-67 Woodlands Avenue, Lugarno, into nine (9) lots.

DA 20030013 proposing a new three (3) storey residence consisting of four bedrooms, three bathrooms, ensuite, family, dining and lounge rooms, study, bar, two rumpus rooms, front and rear balconies, and an indoor concrete swimming pool was submitted to Council in January 2003. The application was notified to adjoining neighbours and no submissions were received during the fourteen day period. The application was approved in August 2003.

Condition 10 of the approval reads as follows.

‘Amended architectural drawings are to be submitted to Hurstville City Council with the following information for further assessment prior to the release of the Construction Certificate:

a) The overall height of the dwelling house is to comply with the maximum 9.0m height limit.’

The current Section 96 Modification application seeks to delete this condition.

So as to comply with the condition and Council’s 9 metre height requirement, the building is required to be reduced in height by up to 1.5 metres. This will require major design changes and possibly a new development application. The owner has indicated to Council that he is prepared, if necessary, to eliminate a portion of the first floor rumpus area located to the south western corner of the proposed building. This portion of the building has the most significant breach of the 9 metre height envelope.

STATUTORY REQUIREMENTS

The site is zoned 2 – Residential under the provisions of the Hurstville Local Environmental Plan 1994. The proposal is permissible with the consent of Council.

The subject application is affected by the requirements of the Code for Single Dwelling Houses and has also been assessed under Section 79C(1) – ‘Matters of Consideration’ of the Environmental Planning and Assessment Act, 1979 (as amended).

ASSESSMENT

The proposal has been assessed under the provisions of the Code for Single Dwelling Houses and Hurstville Local Environmental Plan 1994 – Clause 19A and 19B, and a table of compliance follows.

Code for Single Dwelling Houses	Standard	Proposed	Complies
Site dimensions		14.06m x 119.47m
Site area		1584sqm
Clause 3.3.3	FSR of 0.45:1	28.41% or 450.05sqm	Yes
Landscape open space	55%	79.9%	Yes
Height	9m	9.0m-10.5m	No (1)
Front boundary setback	4.5m	5.0m	Yes
Rear boundary setback	Foreshore building line	Rear balconies to foreshore building line	Yes
Car parking	2 spaces required	Double garage	Yes
Window location to adjoining building	1m offset	No adjoining buildings existing or proposed	Yes
Solar access	4 hours to private open space	No adjoining buildings	Yes

Hurstville LEP 1994 Clause 19A – Development in Foreshore Areas	Standard	Proposed	Complies
Appearance from waterway and adjacent foreshore areas	Appropriate appearance	Dense cover from lower escarpment native trees provides obscuring from river perspective. Building similar in appearance to other adjoining buildings	Yes
Development will not cause any pollution or saltation of waterway	Provision of sediment controls and appropriate stormwater and site drainage	Sediment controls and stormwater dispersion system	Yes
Adverse effects on surrounding uses, marine habitats, wetland areas or flora and fauna habitats	No adverse effects	No adverse effects	Yes
Development not to cause significant runoff, result in excessive excavation or effect drainage patterns	Not cause significant impact	No significant impact	Yes
Development will not cause congestion or conflict between people using open space areas	Not cause congestion or conflict	No effect	Yes
Development will not adversely affect historical, scientific, cultural, social, archaeological, architectural, natural or aesthetic significance of any heritage item, or any other building, work, area or place of relating to the environmental heritage of the subject or surrounding land	Not adversely affected	No adverse effect	Yes
Development will not adversely affect natural topography, natural rock formations or significant vegetation on or adjoining the land	Not adversely effected	No significant tress or vegetation to be removed. Excavation to affect rock formations only within footprint of building – unavoidable	Yes

Hurstville LEP 1994 Clause 19B –Foreshore Scenic Protection Area	Standard	Proposed	Complies
Likely impact on views from adjoining properties and public places to the waterway and adjacent foreshore areas	No significant impact	Will not affect surrounding properties or public places	Yes
Developments design and selection of materials and their impact on the character of the locality and landscape open space on the site	Materials to be in character with surrounding area and not have impact on landscape open space	Materials similar to surrounding development and no landscaping work below foreshore building line	Yes

(1) Height

The natural topography of the site sees a steep slope towards the Georges River and a moderate slope from east to west. The steep slope and the compression of the building footprint due to the foreshore building line results in difficulty complying with the 9 metre height requirement when proposing a three storey building. The proposed dwelling’s floor levels cannot be lowered as driveway gradient will not allow.

The upper parapet line level of 57.3 measured at the middle of the building is 0.3m above the 9 metre height limit. At the western side it exceeds the height limit by 1.1 metre. The lower parapet line when measured in the middle of the roof line has an overall height of 8.5 metres. When measured at the extreme western side wall the RL of 55.5 exceeds the height limit of 1.5 metres.

The east to west side slope results in compliance for the eastern side of the dwelling only. The boulder rock formation results in inconsistencies in overall height with the difference between compliance and non compliance changing many times for the one roof area.

The extent of non compliance with the 9m height requirement is illustrated graphically on the plans to be displayed at the meeting.

SUMMARY

The original application was submitted to Council twelve months ago. The current proposal in the form of a Section 96 Modification application seeking to delete a condition requiring compliance with the 9 metre height limit.

Compliance with the height restriction would necessitate a major redesign involving the elimination of a storey. The nature of the changes would most likely require a new development application. Lowering the building is not an option as driveway gradients are at maximum design.

The two immediate adjoining properties are currently vacant and will experience similar design issues in the future. The newly constructed buildings on the upper lots are at a higher level and not visually affected by the proposal.

The lower escarpment has numerous native indigenous trees offering canopy screening from a river perspective. A condition of approval has been imposed for a schedule of external finishes to be submitted to Council. The colours and textures will be required to be sympathetic to the surrounding environment.

The applicant has indicated to Council the need for a large dwelling due to family size. He submits that the foreshore building line has condensed the site and necessitated a three storey residence so as to accommodate his family and lifestyle.

CONCLUSION

The requirements of Section 79C of the Environmental Planning and Assessment Act 1979 and Hurstville Local Environmental Plan 1994 and Council’s Code for Single Dwelling Houses have been complied with except for the intended overall height.

The steep grade of the site both longitudinally and laterally have incurred the variances from Council’s prescribed height limit of 9 metres and due to these circumstances is considered reasonable in this particular case.

The proposed building is considered to be of a design and character that is consistent with other developments in both the immediate vicinity and surrounding locality.

RECOMMENDATION

THAT pursuant to the powers vested in Council by Section 80(1) of the Environmental Planning and Assessment Act, 1979 (as amended), the Council, as the consent authority, approve the deletion of Condition 10 of consent DA 20030013, dated 7 August 2003, and substitute the following condition.

'The building floor levels shown on the approved plans shall be adhered to and the overall parapet level shall not be increased above RL55.7 and RL57.6 respectively.'

* * * * *

APPENDIX

COMMITTEE'S DECISION

THAT the application be approved in accordance with the conditions included in the report.

(Moved Clr W Pickering/Seconded Clr C Lee)

Meeting Date: 28/01/2004

DAC003.03 - 04
136 MI MI STREET, OATLEY - CONSTRUCTION OF COLOURBOND BOUNDARY FENCE TO THE WESTERN AND NORTHERN
BOUNDARIES

APPLICANT
Mr GS and Mrs DM Pemberton

PROPOSAL
Construction of boundary fence to the western and northern
boundaries

ZONING
Zone 2 - Residential (Foreshore Scenic Protection Area),
Development Area B

APPLICABLE PLANNING INSTRUMENT/S
Hurstville Local Environmental Plan 1994 (Foreshore Scenic
Protection Area)

HURSTVILLE LOCAL ENVIRONMENTAL PLAN 1994 INTERPRETATION OF USE

OWNERS
Mr GS and Mrs DM Pemberton

EXISTING DEVELOPMENT
Two storey dwelling

COST OF DEVELOPMENT
$4,750.00

REASON FOR REFERRAL TO COUNCIL
One (1) objection received and foreshore building line
considerations

REPORT AUTHORS
Manager - Development Control, Mr G Young

FILE NO
DA 20030951

EXECUTIVE SUMMARY

1. The application is for the erection of a 1.8m colourbond fence to the north and west boundary of the above property.

2. Portion of the proposed fencing is to be sited within the foreshore building line.

3. One (1) objection was received from the adjoining owner.

4. This application was 'called over' from the DAC Delegation of 14 January, 2004.

RECOMMENDATION

THAT the application be approved in accordance with the conditions included in the report.

___________________________________________________________________________

REPORT DETAIL

BACKGROUND

This application was 'called over' from the DAC Delegation of 14 January, 2004, by Councillors Lee and Morris due to concerns that Council should not be involved in dividing fence matters and also the appropriateness of a colourbond fence in this location.

SITE AND SURROUNDING DEVELOPMENT

This site is an irregular shaped property situated on the western side of the waterfront end of Mi Mi Street and was originally a subdivision of 134 Mi Mi Street. Access to the premises is via a ramp off the end of the made road where parking for two cars has been provided.

A foreshore building line of 15m applies to the site however the building on the land is setback only 5.5m from MHWM.

PROPOSED DEVELOPMENT

It is proposed to erect a 1.8m high colourbond fence on the western boundary commencing 5.5m from the MHWM and extending some 13.7m until it meets the northern boundary.

The proposed fence then is to extend along the northern boundary for 19.812m where it makes an approximate 45 degree turn up towards the road for a distance of 4.4m.

Of the fencing proposed only about 9.5m is to be sited within the foreshore building line. All of the remaining fence is not subject necessarily to a development application if it remains at a maximum of 1.8m in height. However, due to the steepness of the terrain various short sections of the fence are between 2.5m and up to 3m in height.

STATUTORY REQUIREMENTS

The erection of boundary fences within the foreshore building line and foreshore land is specifically permitted provided that the fifteen itemised considerations in Clause 19, 19A and 19B of Hurstville Local Environmental Plan 1994 have been addressed.

The proposal has been assessed under those ‘Matters of Consideration’ and comment is made on the various considerations in the report.

ASSESSMENT OF DEVELOPMENT

The proposal has been assessed under the provisions of Clause 19, 19A and 19B of the Hurstville Local Environmental Plan 1994 and the summary of compliance is as follows.

Foreshore Building Lines (FSBL)

’19. (1) the council may, by resolution, fix a foreshore building line in respect of any bay, river, creek or waterway.

(5) A person may, with the consent of the council granted after the council has considered the probably aesthetic appearance of the proposed structure in relation to the foreshore, erect:

(a) baths;
(b) boat shed;
(c) dressing sheds;
(d) wharves;
(e) jetties;
(f) structures below the surface of the ground;
(g) swimming pools;
(h) pergolas; or
(i) boundary fences,

between a foreshore building line and the bay, river or creek in respect of which the line is fixed.’

In 1983 the 15m foreshore building line was varied to 5.5m to allow the building of a dwelling on the subject land. In 1994 the foreshore building line was refixed at 15m. Therefore approximately 9.5m of fencing is between the foreshore building line and the MHWM. The fence due to its location below cliffs and amongst vegetation should have no visible impact in the locality.

Development in Foreshore Areas

‘19A. Before granting consent to the development of land within or adjoining land within Zone 7, the council must be satisfied that:

(a) it has appropriately considered the appearance of the development from both the waterway and adjacent foreshore areas;

COMMENT – Yes, the proposed fence will blend with the bushland to the west and the escarpement to the north and will not be visible or obtrusive from the waterway due to dense mangrove cover along the foreshore.

(b) the development will not cause any pollution or siltation of the waterway;

COMMENT – No pollution will result from the proposal.

(c) the development will not have any adverse effects on surrounding uses, marine habitats, wetland areas or flora and fauna habitats;

COMMENT – No, 5.5m from MHWM.

(d) the development will not cause significant runoff, and will not result in inappropriate and excessive excavation or have an adverse effect on drainage patterns;

COMMENT – No. Gaps will be provided beneath the fence and overland flow of waters will not be obstructed.

(e) the development will not cause congestion of, or generate conflicts between, people using open space areas or the waterway (or both);

COMMENT – No, on private property.

(f) the development will not adversely affect the historic, scientific, cultural, social, archaeological, architectural, natural or aesthetic significance of any heritage item, or any other building, work, area or place relating to the environmental heritage on or forming part of the land, or on or forming part of surrounding land; and

COMMENT – Not applicable.

(g) the development will not adversely affect the natural topography, any natural rock formations or significant vegetation located on or adjoining the land.’

COMMENT – No, it is to replace a wire fence on the same line.

Foreshore Scenic Protection Area

‘19B. (1) This clause applies to land within a foreshore scenic protection area, which is land shown edged heavy black with diagonal hatching on the map marked ‘foreshore scenic protection area’.

(2) A dwelling house must not be erected on land within a foreshore scenic protection area, except with the consent of the council.

COMMENT – No relevance to this application.

(3) The minimum density requirement for the erection of more than one dwelling on land within a foreshore scenic protection area is 500 square metres per dwelling;

COMMENT – Not applicable to this application.

(4) The council must not grant consent to the carrying out of any development on land to which this clause applies unless it has considered the following:

(a) the appearance of the proposed development from both the waterway and adjacent foreshore areas;

COMMENT – The fence will not be visible from the waterway.

(b) the likely impact of the proposed development on views from adjoining properties and public places to the waterway and adjacent foreshore areas;

COMMENT – The northern fence will be adjacent to an embankment and would not be seen. The western fence would blend with the trees.

(c) the likely effect of the proposed development on the natural topography, natural rock formations, canopy vegetation, or any other significant vegetation;

COMMENT – No effect anticipated other than postholes.

(d) the design of the proposed development and selection of materials and their impact on the character of the locality and landscaped open space on the site.’

COMMENT – Considered satisfactory.

PUBLIC NOTIFICATION AND COMMENT

Six (6) 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 and is summarised as follows with comment below.

‘Under the Hurstville City Council Code for the Erection of Fences

Section 7.2, Fences shall be designed so as to be compatible with the adjoining and natural surroundings.

Section 8.4, Fencing in foreshore zones – Fencing in foreshore areas shall be designed to preserve views and to minimise disturbance to the natural landscape. Preference will be given to open type fences that are inobtrusive and do not restrict views.

Generally, solid fences will not be permitted between the foreshore building line and mean high water mark.’

Comment: In accordance with Section 7.2 the applicant has claimed that the colourbond ‘meadow’ colour will blend with the existing vegetation.

The existing dwelling at 136 Mi Mi Street has approximately three quarters of their house within the foreshore building line setback. The applicants now area seeking a fence type which is similar to other properties in the area, which provides security and privacy from adjoining properties.

‘As advised by the Chamber Magistrates Kogarah Office, under the Dividing Fence Act a solid and/or metal fence would be deemed inappropriate and not in accordance with the local area and environment.’

Comment: This is a comment which could be made by a person who has not visited the site. Under normal circumstances a chain wire fence would be acceptable however, given the fact that there are no views along the foreshore or from the foreshore to the site the type of fence is not as important.

‘As per enclosed photo’s, they clearly show that the existing chain wire fence is virtually invisible, unobtrusive and adequate. There are no privacy issues as my neighbours property is situated several metres below our property due to the sheer natural rock cliff edge.

Mr Pemberton has falsely accused me of placing green waste on to his property and directly on the chain wire fence. This is just another ploy to get his plans approved. Council officers are at any time welcome to inspect and verify my statement.’

Comment: The indicated wire fence is not a structure which would readily be accepted as a fence and is not considered a common fence of the area. One of the photographs provided clearly shows bushland waste stored on the west boundary.

‘Mr Pemberton has also misled us on the costing of his project as his DA application shows the valuation work to be $4,750 where as the lowest quote forwarded to us was $5,800 a discrepancy of $1,050. Copies of quotes are enclosed. Checking with fencing contractors I found the fence cost of $5,800 is approximately double the cost of the same fencing on a flat block compared to our steep and difficult terrain.

My wife and I are part-time workers with a young family to raise and do not need to be burdened by this unnecessary costly neighbours whim.'

'As per the Dividing Fences Act and as advised by the Chamber Magistrates office, if the current chain wire fence needs to be repaired, I am willing to share half costs.’

Comment: The cost and type of fence can only be adjudicated on by the Local Court and the Local Land Board.

CONCLUSION

Council’s decision in this application may be used as a guide in any consideration should it reach the judicial stage. Should Council approve the application the agreement of the adjoining owner, the objector, would be needed to proceed. (A Chamber Magistrate may provide direction to proceed and share costs.)

In most foreshore areas a colourbond fence would be considered inappropriate both from the viewpoint of materials and the fact that the fence can not be readily sloped in sympathy with the land form.

The applicant has not advanced any cogent reasons as to why a colourbond fence is being sought in preference to a chain wire fence.

Although the proposal is considered to be generally acceptable the approval of colourbond fence within the foreshore building line setback may be an unwise precedent especially in view of the obvious different view points held by the applicant and his neighbour.

RECOMMENDATION

THAT pursuant to the powers vested in Council by Section 80(1) of the Environmental Planning and Assessment Act, 1979 (as amended), the Council, as consent authority, grant consent under DA 20030951 for the construction of a dividing fence between properties 134 and 136 Mi Mi Street, Oatley, subject to the following conditions.

1. The section of the fence between mean high water mark and a point 15m from the mean high water mark shall be constructed of steel posts and cyclone wire each of a dark colourbond colour to satisfy the requirements of Council's Fencing Code and the aesthetic requirements of Clause 19(5) of the Hurstville Local Environmental Plan 1994.

2. The remainder of the fence shall be constructed with a sloping top edge to reflect the ground slope and reduce its height as far as possible to 1.8m.

3. A colour sample of the fence, colour as agreed between neighbours, shall be submitted to Council for approval.

4. The agreement of the neighbour at 134 Mi Mi Street be submitted to Council to a fence conforming to these conditions before work proceeds. Alternatively, the work may proceed in accordance with an Order of the Local Court or the Local Land Board.

* * * * *

APPENDIX

COMMITTEE'S DECISION

THAT in the area of Council's jurisdiction, i.e. in the foreshore building line setback, the application for a colorbond fence be refused.

FURTHER, THAT as an advisory note to the applicant, the requirements of the Dividing Fences Act and Council's Code for Dividing Fences state that the concurrence of the neighbours is required with regard to the type of dividing fence, and a maximum height of 1.8m being maintained.

(Moved Clr P Sansom/Seconded Clr C Lee)

Meeting Date: 28/01/2004

DAC003.04 - 04
40 BLACKBUTT AVENUE, LUGARNO - DEMOLITION OF EXISTING DWELLING AND ERECTION OF ATTACHED DUAL OCCUPANCY
WITH TORRENS TITLE SUBDIVISION

APPLICANT
Russell Green

PROPOSAL
Demolition of Existing Dwelling and Erection of Attached
Dual Occupancy with Torrens Title Subdivision

ZONING
Zone 2 - Residential

APPLICABLE PLANNING INSTRUMENT/S
Hurstville Local Environmental Plan 1994, Interim Residential Development Code

HURSTVILLE LOCAL ENVIRONMENTAL PLAN 1994 INTERPRETATION OF USE

OWNERS
Russell Green

EXISTING DEVELOPMENT
Dwelling house

COST OF DEVELOPMENT
$420,000.00

REASON FOR REFERRAL TO COUNCIL
Variation to IRDC and proposal within Foreshore Scenic
Protection Area

REPORT AUTHORS
Consulting Town Planner, Mr S Flanagan

FILE NO
DA 20030937

EXECUTIVE SUMMARY

1. This application seeks permission to demolish the existing dwelling and construct an attached two (2) storey dual occupancy with Torrens title subdivision at 40 Blackbutt Avenue, Lugarno within the Foreshore Scenic Protection Area.

2. The application has been assessed against the provisions of Section 79C(1) of the Environmental Planning and Assessment Act, 1979 (as amended), Hurstville Local Environmental Plan 1994, and Council's Interim Residential Development Code (IRDC). The proposal does not comply with the IRDC with respect to the dwelling houses are attached and the side setbacks are less than 2m.

3. The proposal falls within Council's Foreshore Scenic Protection Area, hence Development Control Plan No 11 - Dual Occupancy Housing is not relevant and Council's Interim Residential Development Code applies.

3. No neighbour objections were received within the notification period.

RECOMMENDATION

THAT the application be approved in accordance with the conditions included in the report.

___________________________________________________________________________

REPORT DETAIL

SITE AND SURROUNDING DEVELOPMENT

The development site is located in a residential area 120m from the Georges River, within the Foreshore Scenic Protection Area. The site (1172sqm in area) is situated at the northern side of Blackbutt Avenue, close to the junction with Murdock Crescent and adjacent to a reserve of undeveloped Council land which is under forest. The site falls away from the road, falling from a reduced level of approximately 33m adjacent to the public road to approximately 23m at the rear boundary of the site. The steepest parts of the site are located at the front and rear boundaries; the central part of the site where an existing 2 storey house is located has a gentle slope to the rear. There is a steep embankment along the eastern site boundary which borders the Council reserve. Houses in the area are of predominantly 2 storey construction although; there are also 3 storey dwellings in the vicinity. The adjacent dwelling on No 38 to the east is 2 storeys in height, with a patio door, veranda and 3 windows facing the existing house on the development site. There are a number of mature trees on the site. There is a 6 m wide electricity easement through the centre of the site.

PROPOSED DEVELOPMENT

The applicant proposes to develop a two storey semi-detached dual occupancy (397.7sqm). The proposed dwellings are located at the easterly side of the site, 1.5m from the site boundary. The proposed southerly dwelling, closest to Blackbutt Avenue, contains three (3) bedrooms and a garage at first floor level. The garage (reduced floor level 32.5m) is accessed via a new entrance and ramp descending from Blackbutt Avenue. Living accommodation is provided at ground floor level. The second dwelling is accessed through the existing entrance from Blackbutt Avenue by a new driveway approximately 50m long. It contains 3 bedrooms at first floor level. Living accommodation at ground floor level is supplemented by a single storey annex to the north which contains a family room. An underground garage is proposed for this unit (floor level 25.10m). Windows to habitable rooms at first floor level face primarily to the North West and away from the adjoining property to the east. The ground floor levels of the proposed units are 29.0m and 27.9m for the front and rear unit respectively, first floor levels being 31.95m and 29.75m. The proposed highest roof ridge level is 37.2m. The roof is pitched at 25 degrees.

The existing 2 storey brick and timber residence on the subject site has a ground floor level of 26.85m and a first floor level of 29.54m. The level of the top of the roof over the eaves is stated as being 32.28m and the roof is essentially flat. The ridge level of the adjoining house to the east is 34.15m.

The proposed external finishes are indicated as selected face brick, concrete roof tiles, f/c sheet lining on upper gables, D.A.R facia board, aluminium windows and framed glass balcony railings.

It is proposed to drain stormwater to the Council land to the north west; stormwater will flow over a headwall and scour protection device into the reserve.

It is proposed to construct a retaining wall approximately 37m long to the front of the roadside dwelling and along part of the eastern site boundary.

STATUTORY REQUIREMENTS

The development has been inspected and assessed under the relevant Section 79C(1) "Matters for Consideration" of the Environmental Planning and Assessment Act 1979, Council’s Local Environmental Plan 1994 and Council’s Interim Residential Development Code.

ASSESSMENT OF DEVELOPMENT

ENVIRONMENTAL PLANNING INSTRUMENT

The site is suitably zoned residential in Hurstville Local Environmental Plan 1994. The site is located in the Foreshore Scenic Protection Area. The provisions of the Local Environmental Plan which relate to the Foreshore Scenic Protection Area are considered.

11(3) Minimum Allotment Sizes - The subject site is the last site on its street and adjacent to an area of Council owned open space; it can, as such, be considered as a corner site where Clause 19B(3) requires that 500sqm of site area be provided per dwelling. The site are of 1172sqm is therefore adequate.

19B(4)(a) Foreshore Scenic Protection Area - requires that the appearance of the proposed development must be considered from both waterways and adjacent foreshore areas. The site is well screened by trees located both on, and around the site and it is not considered that the proposed development will be prominent when viewed from the waterway and adjoining areas.

19B(4)(b) - requires that the likely impact of the development on views to the waterway from adjoining properties and public places be considered. There are no significant waterway views over the site from the public road adjacent to the site. First floor windows from the adjacent property face the wall of the existing dwelling on the site and it is not considered that any views from the adjoining property will be impacted.

19B(4)(c) - requires that impact on natural topography, natural rock formations, canopy vegetation, or other significant vegetation be considered.

Excavation is proposed at the location of the foot print of the proposed house and retaining wall; these are primarily located over the footprint of the existing house. There will be excavation into the embankment towards the front of the site where existing ground levels are indicated as being approximately RL31; the proposed finished floor level in the area is shown as RL29. Further excavation of this area is required closer to the public road to construct a retaining wall and access bridge to the first floor garage. It is not considered that the natural topography of the area will be significantly affected as no construction of embankments or terracing of the site is proposed. A rock outcrop is visible at the front of the adjacent housing site, although no outcrops are apparent on the development site.

In relation to vegetation, the Tree Preservation Officer has reported that it is acceptable to remove an oak tree, prunus and dead eucalypts on the slope as per the landscape plan submitted with the application and that all other trees shall be retained. It is considered that the wooded character of the area will not be affected by the development of the proposed houses.

19B(4)(d) - requires that the design of the proposed houses, selection of materials and landscaping be considered in relation to impact on the character of the locality. The development application states that the house has been designed to be generally in accordance with the provisions of Development Control Plan 11 - Dual Occupancy Housing, although that document does not apply in the Foreshore Scenic Protection Area. Maximum wall height and ridge height above finished ground levels are generally 6m and 9m respectively with some encroachments over these by up to 600 mm. Front and side set backs are generally in accordance with Development Control Plan 11, being a minimum of 5.4m to 6.0m and 1.5m respectively. The proposed rear set back is approximately 10m.

The total site area is sufficient to allow for two detached dwellings; however there is a 6m wide easement for electricity supply down the centre of the site from front to back which would require any detached houses to be located towards the eastern and western boundaries of the site. It is considered that the development of a dual occupancy on the eastern side of the site is an acceptable solution and will result in reduced visual impact when viewed from the public road.

The size of the houses and their proposed external finishes (face brick and concrete tiles) are not inconsistent with houses on nearby sites. Significant retention of existing mature trees on the site will assist in integrating and screening the development.

The proposed development also requires consideration under Council’s Interim Residential Development Code (IRDC).

The development site is located in Development Area A. A compliance matrix with the objectives of the IRDC for Residential Area A is considered below.

IRDC Objective	Proposal	Complies
To encourage development in the form of detached houses	Attached dual occupancies are proposed	No
To encourage development compatible with the scale and character of existing detached housing	The proposed dual occupancy is well screened and will appear as a detached house from the public road. The design and external finishes are compatible with houses in the vicinity	Yes
To encourage development which has a high proportion of natural ground surface.	Approx 70 per cent of the site will remain as natural ground surface	Yes
Building height, side and rear setbacks conform to building envelope, excavations not to exceed 500mm below existing ground levels	Proposed dwellings contravene building envelope for side boundary controls along eastern boundary (setback < 2.0m), site excavations are significantly greater than 500mm.	No
Max no. of storeys:2	2 storeys proposed; underground garage does not protrude more than 1m above ground level and is not considered to be an additional storey	Yes
Private accessible open space	100sqm of accessible open space is available to both dwellings	Yes
55% of site area to be landscaped open space	Approx. 70 per cent of site area will remain as open space	Yes
To permit low density housing with minimal impact on existing residences and streetscape	The proposed development density is in accordance with LEP 1994. It is considered that the dwellings will be well screened by existing trees on the site. The building form has the appearance of a single dwelling when viewed from the road.	Yes

In relation to the non-compliance of certain aspects of the proposed development with Council’s Interim Design Code; dual occupancies, although not encouraged, are not a prohibited development. The proposed units are outside the building envelope contained in Council’s Interim Design Code and involve excavation significantly deeper than 500mm; it is considered that the development as proposed is an acceptable design solution for the site considering site constraints such as sloping topography and the electricity supply easement. Although the site has 45m of frontage, the effect of the electricity easement is to make the useable frontage much less; 20m at the eastern side and 9m at the western side and the site narrows substantially towards the rear. The IRDC permits narrow frontage sites to have setbacks of 1.5m under which the proposed development would be permissible. The overall area of open space on the sites is sufficient; however the slope is greater than 1 in 20. It is considered that extensive site works to modify the site topography to achieve compliance with the 1 in 20 gradient are not desirable and that the open space as proposed can be accepted.

LIKELY IMPACTS OF THE DEVELOPMENT

Overlooking
It is not considered that there will be excessive overlooking of the adjoining property from the proposed development. Only one window serving a habitable room (bedroom 3 of the front unit) faces the adjoining site.

Overshadowing
Overshadowing of the adjoining property is not considered to be excessive. Shadow diagrams submitted with the application indicate that 4hrs of sunlight is available to the adjoining property on the winter solstice.

Impact on the environment
The tree preservation officer has consented to the removal of a small number of trees on the site. Conditions of consent will require the retention of all other trees and it is considered that the wooded character of the area will not be significantly affected.

SUITABILITY OF THE SITE FOR DEVELOPMENT

It is considered that the proposed split level dual occupancy development is an acceptable design solution on the site in view of site constraints dictated by topography and an electricity easement. Set backs from boundaries are considered acceptable and the general density of development is permitted under the Local Environmental Plan.

REFERRALS

Manager - Development Advice

Manager – Development Advice recommends that Section 94 drainage contributions be paid and that appropriate conditions be imposed relating to drainage pipe junctions, pipe diameters and drainage maintenance. Manager – Development Advice also requires the construction of a footpath across the site frontage.

The above can be included in the conditions of consent.

Tree Preservation Officer

Tree Preservation Officer states that it is acceptable to remove the oak tree, prunus and dead eucalypts as indicated on the plans and that all other trees should retained as indicated on the plans.

PUBLIC NOTIFICATION AND COMMENT

Adjoining residents were notified by letter and given fourteen (14) days in which to view the plans and submit any comments on the proposal.

No objections to the development have been received.

SUMMARY

The application complies generally with Council's Local Environmental Plan 1994 and is satisfactory after consideration under the provisions of the relevant Section 79C of the Environmental Planning and Assessment Act 1979 (as amended). No neighbour objections have been received. Although not fully in compliance with Council’s IRDC, the proposed development is considered to be acceptable on the site in question in view of the constraints resulting from site topography and an electricity easement.

RECOMMENDATION

THAT, pursuant to the powers vested in Council under section 80(3) of the Environmental Planning and Assessment Act, 1979 (as amended), the Council, as consent authority, grant consent under DA 20030937 for the demolition of the existing dwelling and erection of an attached dual occupancy with Torrens title subdivision on land known as Lot 19, DP 28768, 40 Blackbutt Avenue, Lugarno, subject to the conditions detailed below.

1. Standard conditions for dual occupancy developments.

2. Appropriate conditions relating to drainage and the construction of a footpath as recommended by the Manager - Development Advice.

3. All trees to be retained except those whose removal has been authorised by the Tree Preservation Officer.

4. Payment of Section 94 Contribution fees of:

Open Space	$4,332.00
Community Services and Facilities	$2,500.00
Management	$184.38
Library – Infrastructure	$1,273.00
Library – Bookstock	$7.19
Drainage Services	$2,801.08

* * * * *

APPENDIX

COMMITTEE'S DECISION

THAT the application be approved as a deferred commencement approval, pending submission of a geotechnical report for the area of the turning circle which is known to contain unstable fill, such report to include assessment of stabilisation of the bank, tree trunk protection and slab reinforcement requirements.

(Moved Clr P Sansom/Seconded Clr W Pickering)

Meeting Date: 28/01/2004

DAC003.05 - 04
8 BARRY AVENUE, MORTDALE - RENEW DEVELOPMENT
CONSENT FOR THE CONTINUED USE OF A FACTORY UNIT FOR
THE PURPOSE OF STEEL FABRICATION

APPLICANT
Spartan Steel, Anthony Luoizos

PROPOSAL
Renew Development Consent for the Continued Use of a
Factory Unit for the Purpose of Steel Fabrication

ZONING
Zone 4 - Light Industrial

APPLICABLE PLANNING INSTRUMENT/S
Hurstville Local Environmental Plan 1994, Development
Control Plan No 7 - Light Industrial, Development Control
Plan No 2 - Car Parking

HURSTVILLE LOCAL ENVIRONMENTAL PLAN 1994 INTERPRETATION OF USE

OWNERS
Mario Martino and Rita Martino

EXISTING DEVELOPMENT
Use of factory unit for the purpose of steel fabrication

COST OF DEVELOPMENT
N/A

REASON FOR REFERRAL TO COUNCIL
Five (5) objection letters received

REPORT AUTHORS
Development Assessment Officer, Mr M Tempest

FILE NO
DA 20030978

EXECUTIVE SUMMARY

1. This report relates to the renewal of Development Consent 20020935 for a further six (6) month approval for the continuing use of a factory unit for the purpose of steel fabrication.

2. The report provides an assessment of the development application with respect to the development consent DA 20020935 and its associated conditions of approval.

3. The proposal to continue the use of a factory unit for the purpose of steel fabrication is viewed to be unreasonable due to the fact that the current operations are not being carried out to the approved conditions of development consent DA 20030935.

4. The proposal was notified to adjoining owners and five (5) objections were received during the fourteen (14) day period.

RECOMMENDATION

THAT the application be refused in accordance to the reasons included in the report and an Order to Cease Use of the Premises be served upon the applicant/occupier.

___________________________________________________________________________

REPORT DETAIL

BACKGROUND

Council received nineteen (19) letters of complaint regarding the subject site being used for the fabrication of steel in May 2002.

A site inspection and review of Council records revealed that works were being carried out without the prior consent of Council. The business is not categorised as ‘exempt’ development in this instance due to the floor area of the factory unit being in excess of 500sqm.

Also, the hours of operation as prescribed by the Development Control Plan No 7 for light industrial areas were not being adhered to.

Subsequently, Council issued a Notice of Intention to Serve an Order under the provisions of Section 121B of the Environmental Planning and Assessment Act 1979. The occupiers were required to show cause why the use should not cease to operate.

No response was received to the Notice and subsequently an Order was issued. After the period for compliance with the Order, Council received a development application from Spartan Steel Fabrication for use of the building for the purpose of steel fabrication.

Development Consent DA 20020935 was issued on 18 December, 2002, conditionally, for a period of six months. For the approval to be extended or to be made permanent, it was required that an application be lodged with Council one month prior to the six month period lapsing.

On 8 January, 2003, Council requested the submission of a management plan indicating methods for the daily operation of the business and compliance with conditions of development consent.

The letter indicated that compliance with the management plan and conditions of development consent would enhance the probability of an extension of approval.

¨ A management plan was not submitted to Council.
¨ An application for extension of development consent was not submitted to Council, one month prior to 18 June, 2003.
¨ Council is in receipt of further complaints.

A Notice of Intention to Serve an Order No 1b, Section 121 Environmental Planning and Assessment Act for the operation of the business to cease was issued on 7 August, 2003.

The Order was served on 22 October, 2003, ordering the premises to cease use for the purposes of steel fabrication within twenty eight (28) days.

SITE AND SURROUNDING AREA

The subject premises is located on the northern side of Barry Avenue, six lots from the intersection of Barry Avenue and Boundary Road.

The site falls gradually towards the rear. There is a front factory unit of 632sqm and a rear unit of 279sqm. The overall site area is 1671sqm.

Barry Avenue is a street consisting of both light industrial factory units/warehouses and residential dwelling homes.

Whilst the adjoining two properties to the sides are industrial, only two lots away on the northern side of the street there is a residential dwelling. The opposite side of the street is zoned Residential 2a and is developed with dwelling houses.

STATUTORY REQUIREMENTS

The site is zoned 4 – Light Industrial under the provisions of the Hurstville Local Environmental Plan (LEP) 1994.

The subject application is affected by the requirements of Hurstville’s Development Control Plan No 7 – Light Industrial Area and Development Control Plan No 2 - Car Parking.

The development has been assessed under the relevant Section 79C(1) – ‘Matters of Consideration’ of the Environmental Planning and Assessment Act (as amended) 1979.

ASSESSMENT

The applicant has a report in the form of a Statement of Environmental Effects prepared by a Planning consultant. The Statement discusses compliance with the planning instruments namely the Hurstville Local Environmental Plan 1994, Development Control Plan No 2 – Car Parking, Development Control Plan No 7 – Light Industrial Areas.

The Statement concludes,

‘The proposal to continue the use of the existing premise for the purposes of steel fabrication for a further period of 6 months, at No 8 Barry Avenue, Mortdale, has been assessed in light of Section 79C of the Environmental Planning and Assessment Act, 1979, and Council planning instruments. The proposal is a permissible use pursuant to Hurstville Local Environmental Plan 1994 and generally complies with the objectives of that instrument. The proposal also satisfactorily addresses the relevant standards of Council’s Development Control Plan for Car Parking and Light Industrial Areas.

Compliance with previous conditions of development consent, the proposed closure of the roller shutter openings to the premises between 7.00am and 9.30am daily (except during deliveries or pick-up), and the proposed truck delivery times and truck routes should ensure that surrounding local amenity is not unreasonably or adversely impacted.

The proposal is compatible with Council’s planning objectives and controls for the site, and the locality. Accordingly, in the circumstances of the case and given a lack of any significant adverse impacts, the proposed development is considered appropriate and is submitted to Council for favourable consideration.’

It is apparent that the applicants business is the fabrication of mainly large and heavy steel components which require heavy transport and large cranes to deliver and to load and unload. The conditions imposed on the previous limited consent are not being observed and with hindsight will not mitigate the harm and nuisance being caused to the residential area in the immediate vicinity. In particular the noise generated throughout the day and the disruption caused by the heavy transport vehicles when being unloaded or loaded and manoeuvring/standing on the road.

The definition of ‘Light Industry’ in the Hurstville Local Environmental Plan is quoted below.

‘Light industry means an industry in which the processes carried on, or the transportation involved, or the machinery or materials used, do not interfere unreasonably with the amenity of the neighbourhood, but does not include anything (other than industry) elsewhere defined in this clause.’

Having regard for the nature of the fabrication works, as specialised in by the applicant and the heavy transport required, the actual use can not be accepted as ‘light industrial’.

There are a number of conditions of consent which have not been complied with and the applicant has not submitted an adequate plan of the premises nor has he submitted a management plan detailing how the day to day operations of the business may be conducted to minimise impacts on the neighbourhood.

On assessment of the application under Section 79C of the Environmental Planning and Assessment Act 1979 it is concluded that the use of the premises for steel fabrication should be rejected.

DIVISIONAL REFERRALS

None required.

PUBLIC NOTIFICATION

Adjoining property owners were notified and given fourteen (14) days in which to view the plans and submit any comments on the proposal.

Five (5) submissions were received during the exhibition period for the plans.

The issues of concern are as follows.

“Excessive noise emanating from within the factory as the roller door is always open. Since Spartan Steel has been here we have been unable to open our front and side windows. The constant noise from the grinding and banging is louder than any other factories in the street.

Unacceptable noise from moving vehicles in and out of the factory before 7.00am and after 5.00pm including Saturdays.

Semi trailers being loaded and left on the footpath outside No 10 and in the driveway and being picked up by prime movers before 6.00am.

Trucks double parking outside the factories and residences waiting to gain access to the factory to load and unload, often across our driveways denying us access to our own properties.

Delivery trucks, when reversing into Spartan Steel, are usually of the longest type and consequently having trouble backing in resulting in them driving across the road and up the driveway of the residence at No 17. We have noticed this happening a number of times. If you check you will notice that the concrete crossing of No 17 is severely cracked as is their path beside the driveway.”

“Page 12 – Landscaping – there is no landscaped area provided to enhance the street or to soften the visual impact of the building within light industrial area, garbage and waste steel is left outside the front of the factory for neighbours to look at.

Page 14 – Vehicle access and parking – vehicle parking of the working people in the factory is all over the footpath, making the pedestrians walk around the parked vehicles which should be parked in the area provided at rear of the factory.

Page 15 – Access and Engress (sic) – long trucks are not being manoeuvred over the road and into the driveway of the house across the street and blocking the traffic. There is no turning area for trucks provided on site for this light industrial area.”

“The factory is opened at 6.00am of a morning. We have been here 30 years and most the factories have been closed on Saturday and Sundays.”

Comment

The submissions received from adjoining neighbours furnish genuine concerns. Although a time limited consent was granted for the use the applicant has not complied with the conditions and the likely outcome will be that the use will continue to be an unreasonable impact in the neighbourhood.

SUMMARY

The development application was notified to owners of adjoining properties and five (5) objections were received during the fourteen (14) day period. Therefore the proposed development is deemed to be unreasonable and unsatisfactory in its process to carry out its proposed use. It has interfered continually with the surrounding amenity of the neighbourhood and would further interfere with the physical environment of the city.

A Notice under the Environmental Planning and Assessment Act 1979 for conducting a use without the prior consent of Council is to be issued on the properties of the business.

The use of the premises for the fabrication of heavy steel components is not considered to be light industrial and a further consent for the use should not be granted.

RECOMMENDATION

THAT, pursuant to the powers vested in Council under section 80(1) of the Environmental Planning and Assessment act, 1979 (as amended), the Council, as consent authority,

(A) Refuse the development consent under DA 20030978 for the continued use of a factory unit for the purpose of steel fabrication on land known as Lot 135, DP 7148, 8 Barry Avenue, Mortdale, for the following reasons.

1. The use of the factory for the fabrication of heavy steel components is not considered to be ‘light industry’ and is therefore not permissible within the zone, namely 4 Light Industrial.

2. The use has had an unacceptable impact on the amenity of the adjoining residential area.

3. The use requires heavy transport and the manoeuvring of vehicles for the loading and unloading of materials and finished products causes disruption to traffic in the street.

4. The loading dock facilities on site are inadequate for the proposed use and the storage of materials in off street car parking areas is unacceptable.

5. The use creates unacceptable noise levels in the locality.

(B) The applicant/occupier be served with Orders 1(a) and 1(c) pursuant to Section 121B of the Environmental Planning and Assessment Act requiring the premises to cease for the purpose heavy steel fabrication.

* * * * *

APPENDIX

COMMITTEE'S DECISION

THAT the application be refused in accordance with the reasons included in the report and an Order to Cease Use of the Premises be served upon the applicant/occupier.

(Moved Clr P Sansom/Seconded Clr W Pickering)

Meeting Date: 28/01/2004

DAC003.06 - 04
1 GUNGAH BAY ROAD, OATLEY - SECTION 96 APPLICATION TO
MODIFY CONDITIONS OF CONSENT FOR RECENTLY APPROVED
DUAL OCCUPANCY DEVELOPMENT

APPLICANT
Rahmy Hanna

PROPOSAL
Section 96 Application to modify conditions of consent for
recently approved dual occupancy development

ZONING
Zone 2 - Residential

APPLICABLE PLANNING INSTRUMENT/S
Hurstville Local Environmental Plan 1994, Development Control
Plan No 11 - Dual Occupancy

HURSTVILLE LOCAL ENVIRONMENTAL PLAN 1994 INTERPRETATION OF USE

OWNERS
Rahmy Hanna

EXISTING DEVELOPMENT
Single storey dwelling house

COST OF DEVELOPMENT
N/A

REASON FOR REFERRAL TO COUNCIL
Conditions imposed to satisfy Council's policy requirements

REPORT AUTHORS
Manager - Development Control, Mr G Young

FILE NO
DA 20030594 Rev 01

EXECUTIVE SUMMARY

1. Consent was granted to the above development at the Development Assessment Committee held on 29 October 2003.

2. A Construction Certificate for the building was issued by Private Certifiers BPC Pty Ltd on 24 December 2003.

3. Bulk excavation for the basement car park has been completed.

4. A condition requiring the grant of an easement for upstream properties is in accordance with Council's policy when sites are being developed.

5. The condition relating to width of garage doors reflects that which is shown on the submitted plans which were revised to limit the driveway and garage door exposure to the street.

RECOMMENDATION

THAT Council not agree to the deletion of Conditions 20 and 79 or to the amendment of Condition 3 and accordingly the Section 96 application be rejected.

___________________________________________________________________________

REPORT DETAIL

BACKGROUND

The dual occupancy proposal at the subject premises was consented to by Council at the Development Assessment Committee meeting held on 29 October 2003 following the submission of revised plans reducing the height of the building and minimising the driveway paving and garage door exposure to the street.

REPORT

In determining the application specific conditions were imposed relating to the garage and driveway and also concerning the provision of a drainage easement to benefit the properties at the rear.

The applicant is seeking to have the condition relating to the garage doors varied and the condition relating to the drainage easement deleted.

The relevant conditions are reproduced below.

'3.

Design Changes Required

– To reduce the environmental impact of the development proposal the following design changes are required:

* The driveway entry to the allotment being a maximum of 5m in width at the street alignment and the garage door openings to the basement garages shall each have a maximum opening width of 3m. This condition is imposed to facilitate vehicle access to the garages whilst minimising the visual impact of the garaging and driveways from the street.

These design changes are to be included in the plans for the Construction Certificate.

20. A 1.0 metre wide easement to drain water must be created over the subject site to benefit the lands adjoining the rear boundary known as No 19 and No 17A Boundary Road to allow their stormwater to be drained to the kerb and gutter into the kerb inlet pit located outside the subject site in Gungah Bay Road. The easement must be registered prior to the issue of an Occupancy Certificate or with any plan of subdivision prior to the determination of a Subdivision Certificate. Where the easement is located under the proposed garage the developer must pipe that portion of the easement to the satisfaction of Council.

79. The Survey Plan shall create by Section 88B of the Conveyancing Act an easement to drain water 1.0 metre wide to benefit the lands adjoining to the rear known as No 19 and No 17A Boundary Road. This easement shall be created within the subject property along the total length of the rear (eastern) boundary thence along the total length of the northern side boundary.

A statement is to be included in the 88B instrument to the effect that “The Authority empowered to release, vary or modify these Positive Covenants and restrictions on use is Hurstville City Council”.’

EASEMENT CONDITIONS

The applicant advances the following arguments in favour of his request to delete the requirement for an easement. His letter is reproduced without alteration.

‘We are strongly reject these two conditions Nos. 20 and 79 which required to create easement to drain water to benefit two houses No 19 and 17A Boundary Road for the following reason:

- We have been legally advised that these conditions cannot be legally imposed upon this development;

- From the plans and levels it is very clearly that it will be easy that both can drain water directly to the street (ie Boundary Road);

- The house No 19 is already developed and doesn’t need any easement;

- Both properties has very small area and next to a very busy traffic light; and hence there is no chance to be developed further;

- This condition is very difficult to implement as our site (ie 1 Gungah Bay Road) has surface rock at the back section, and hence it is impossible and not economical to do any drain through our property;

- The proposal in the conditions show that it is not carefully and wrongly proposed for two reasons, first, it means that this easement needs pumps as it will be lower than the kerb and gutter at Gungah Bay Road, secondly it means to give them 1 metre easement which is illegal to give easement under the developed duplex, for no reason, furthermore, the side setback is only 1.5 metre. If the levels not good to drain to Gungah Bay Road, and it needs pumps so why not to pump directly to Boundary Road directly,

IF there will be any future development. Furthermore, it is possible to drain water from these two houses directly to the

Boundary Road directly even without any pumps.

- This conditions is Not fair and will incur high cost to our development, without any compensation and without need;

- The owners of these properties did not ask for any easement nor they submit any objections to our development.

For all the above, we are strongly reject these two conditions and hope you cancel them.’

Comment
It has been a long standing policy of Council to require an easement to drain water over development sites in benefit of upstream properties which may cause nuisance overland flow problems to a newly developed and occupied development. Council receives many complaints from downstream property owners in times of heavy rain and the only real solution is for the downstream property owner to grant an easement to allow the construction of a pipeline through to a street at a lower level.

The introduction of Section 88K into the Conveyancing Act and the ability to appeal to the Land and Environment Court to create easements over properties where the owner is not willing to grant an easement has, to some extent, reduced the need for Council to insist on this condition. Nevertheless, Council must consider the drainage of a site when granting approval to development.

The applicant claims that the two properties in Boundary Road (No 17A and 19) can be drained by alternative means and that they are unlikely to be redeveloped. It is agreed that it would be feasible to construct a deep trench drainage system for property No 17A through an easement in No 19 to a point in front of the BP Service Station in Boundary Road. However, the sites drain naturally to the rear through premises 1 Gungah Bay Road at present and may cause nuisance to the residents of the dual occupancy dwellings. It should be noted that Council is not requiring the developer to install pipes but merely to create the legal pathway for the pipes at some future stage.

GARAGE DOOR CONDITIONS

The reason for imposing the garage door width requirement of 3m is stated in the condition. Prior to reporting the application to the Development Assessment Committee the applicant was advised that the double width garage doors and additional paving was too dominant in the streetscape and agreement was reached to reduce the paving and limit the size of the door openings.

Comment
It is considered that the driveway paving should be restricted to that shown on the approved plans to enable substantial landscape area at the front of the building. The door widths should also be restricted as due to the length and width of each basement garage it will still be possible to independently manoeuvre one car in and out of the garages when another car is parked in the garage.

SUMMARY

The applicant’s reason for deletion of conditions 20 and 79 from the consent is not supported. The amendment of condition 3 to allow a wider doorway necessitating an increased driveway width and more prominent garage doors on the street elevation is also not supported.

RECOMMENDATION

THAT the applicants request be denied and the Section 96 application be rejected.

* * * * *

APPENDIX

COMMITTEE'S DECISION

THAT the Section 96 modification application be approved.

(Moved Clr P Sansom/Seconded Clr W Pickering)

APPLICANT	DA 20030767 - JD Kaplanis, DA 20030768 - M Palasovski, DA 20030769 - M Mikelsons
PROPOSAL	Three Applications for Erection of Attached Dual Occupancies on Small Lot Sites and Demolition of Existing Two Dwellings
ZONING	Zone 2 - Residential
APPLICABLE PLANNING INSTRUMENT/S	Hurstville Local Environmental Plan 1994, Development Control Plan No 10 - Small Lot Housing
HURSTVILLE LOCAL ENVIRONMENTAL PLAN 1994 INTERPRETATION OF USE
OWNERS	DA 20030767 - JD Kaplanis and M Palasovski, DA 20030768 - JD Kaplanis, M Palasovski, N Kaplanis and K Mikelsons, DA 20030769 - N Kaplanis and K Mikelsons
EXISTING DEVELOPMENT	Two single storey dwellings
COST OF DEVELOPMENT	$350,000.00 each DA
REASON FOR REFERRAL TO COUNCIL	Non compliance with DCP No 10
REPORT AUTHORS	Consulting Town Planner, Mr S Flanagan
FILE NO	DA 20030767, DA 20030768, DA 20030769

APPLICANT	Nick and Valentina Tolevski
PROPOSAL	Construction of a Single Dwelling House with a Large Garage Under
ZONING	Zone 2 - Residential, Development Area B
APPLICABLE PLANNING INSTRUMENT/S	Hurstville Local Environmental Plan 1994, Code for Single Dwelling Houses
HURSTVILLE LOCAL ENVIRONMENTAL PLAN 1994 INTERPRETATION OF USE
OWNERS	Nick and Valentina Tolevski
EXISTING DEVELOPMENT	Vacant allotment
COST OF DEVELOPMENT	$130,000.00
REASON FOR REFERRAL TO COUNCIL	Non compliance with Code and one objection letter received
REPORT AUTHORS	Consulting Development Assessment Officer, Mr B Hick
FILE NO	DA 20030696

APPLICANT	S Nasser
PROPOSAL	Proposed Swimming Pool Below Southern Dwelling of Dual Occupancy Under Construction
ZONING	Zone 2 - Residential (Foreshore)
APPLICABLE PLANNING INSTRUMENT/S	Hurstville Local Environmental Plan 1994, IRDC
HURSTVILLE LOCAL ENVIRONMENTAL PLAN 1994 INTERPRETATION OF USE
OWNERS	S Nasser
EXISTING DEVELOPMENT	Vacant site with boatshed
COST OF DEVELOPMENT	$20,000.00
REASON FOR REFERRAL TO COUNCIL	Receipt of neighbour objections
REPORT AUTHORS	Manager - Development Control, Mr G Young
FILE NO	DA 20000689REV01

APPLICANT	Tony Hallasso
PROPOSAL	Section 96 modification application to delete condition of approval
ZONING	Zone 2 - Residential
APPLICABLE PLANNING INSTRUMENT/S	Hurstville Local Environmental Plan 1994, Code for Single Dwelling Houses
HURSTVILLE LOCAL ENVIRONMENTAL PLAN 1994 INTERPRETATION OF USE
OWNERS	Tony and Ranoa Hallasso
EXISTING DEVELOPMENT	Vacant lot
COST OF DEVELOPMENT	$350,000.00
REASON FOR REFERRAL TO COUNCIL	Non compliance with Code
REPORT AUTHORS	Environmental Health and Building Surveyor, Mr M Alexander
FILE NO	DA 20030013, AD 101/03

APPLICANT	Mr GS and Mrs DM Pemberton
PROPOSAL	Construction of boundary fence to the western and northern boundaries
ZONING	Zone 2 - Residential (Foreshore Scenic Protection Area), Development Area B
APPLICABLE PLANNING INSTRUMENT/S	Hurstville Local Environmental Plan 1994 (Foreshore Scenic Protection Area)
HURSTVILLE LOCAL ENVIRONMENTAL PLAN 1994 INTERPRETATION OF USE
OWNERS	Mr GS and Mrs DM Pemberton
EXISTING DEVELOPMENT	Two storey dwelling
COST OF DEVELOPMENT	$4,750.00
REASON FOR REFERRAL TO COUNCIL	One (1) objection received and foreshore building line considerations
REPORT AUTHORS	Manager - Development Control, Mr G Young
FILE NO	DA 20030951

APPLICANT	Russell Green
PROPOSAL	Demolition of Existing Dwelling and Erection of Attached Dual Occupancy with Torrens Title Subdivision
ZONING	Zone 2 - Residential
APPLICABLE PLANNING INSTRUMENT/S	Hurstville Local Environmental Plan 1994, Interim Residential Development Code
HURSTVILLE LOCAL ENVIRONMENTAL PLAN 1994 INTERPRETATION OF USE
OWNERS	Russell Green
EXISTING DEVELOPMENT	Dwelling house
COST OF DEVELOPMENT	$420,000.00
REASON FOR REFERRAL TO COUNCIL	Variation to IRDC and proposal within Foreshore Scenic Protection Area
REPORT AUTHORS	Consulting Town Planner, Mr S Flanagan
FILE NO	DA 20030937

APPLICANT	Spartan Steel, Anthony Luoizos
PROPOSAL	Renew Development Consent for the Continued Use of a Factory Unit for the Purpose of Steel Fabrication
ZONING	Zone 4 - Light Industrial
APPLICABLE PLANNING INSTRUMENT/S	Hurstville Local Environmental Plan 1994, Development Control Plan No 7 - Light Industrial, Development Control Plan No 2 - Car Parking
HURSTVILLE LOCAL ENVIRONMENTAL PLAN 1994 INTERPRETATION OF USE
OWNERS	Mario Martino and Rita Martino
EXISTING DEVELOPMENT	Use of factory unit for the purpose of steel fabrication
COST OF DEVELOPMENT	N/A
REASON FOR REFERRAL TO COUNCIL	Five (5) objection letters received
REPORT AUTHORS	Development Assessment Officer, Mr M Tempest
FILE NO	DA 20030978

APPLICANT	Rahmy Hanna
PROPOSAL	Section 96 Application to modify conditions of consent for recently approved dual occupancy development
ZONING	Zone 2 - Residential
APPLICABLE PLANNING INSTRUMENT/S	Hurstville Local Environmental Plan 1994, Development Control Plan No 11 - Dual Occupancy
HURSTVILLE LOCAL ENVIRONMENTAL PLAN 1994 INTERPRETATION OF USE
OWNERS	Rahmy Hanna
EXISTING DEVELOPMENT	Single storey dwelling house
COST OF DEVELOPMENT	N/A
REASON FOR REFERRAL TO COUNCIL	Conditions imposed to satisfy Council's policy requirements
REPORT AUTHORS	Manager - Development Control, Mr G Young
FILE NO	DA 20030594 Rev 01