AGENDA OF Development Assessment Committee 7 April 2010

DEVELOPMENT ASSESSMENT COMMITTEE

NOTICE OF MEETING
Wednesday, 7th April 2010

31 March 2010

His Worship The Mayor and Councillors

I have by direction to inform you that a meeting of the Development Assessment Committee of the Council will be held at the Civic Centre, Hurstville on Wednesday, 7th April 2010, to commence at the conclusion of the Extraordinary Council Meeting which is being held at 7.00 pm, for consideration of the business mentioned hereunder.

Victor G D Lampe
General Manager

BUSINESS

1. Apologies

2. Disclosures of Interest

3. Confirmation of Minutes

4. Consideration of reports

COMMITTEE MEMBERSHIP

His Worship the Mayor, Councillor P Sansom
Councillor V Badalati
Councillor B Giegerl, OAM
Councillor C Hindi
Councillor A Istephan
Councillor J Jacovou
Councillor N Liu
Councillor S McMahon
Councillor D Perry
Councillor W Pickering
Councillor A Wagstaff
Councillor C Wong

The Quorum for the meeting is 7

DEVELOPMENT ASSESSMENT COMMITTEE

SUMMARY OF ITEMS
Wednesday, 7th April 2010

ITEMS

DAC031-10 MINUTES: DEVELOPMENT ASSESSMENT COMMITTEE - 03/03/2010 (09/1214)

(Report by Director Planning and Development, Mr B Daintry)

DAC032-10 HUR - 4A DONALD STREET, HURSTVILLE - SECTION 96 MODIFICATION TO REAR BALCONY AND SOUTHERN SIDE GROUND FLOOR SETBACK TO APPROVED DWELLING HOUSE (2009/DA-144REV1)

(Report by Team Leader Development Assessment, Ms L Locke and Development Assessment Officer, Mr R Guirguis)

DAC033-10 HUR - 60 DONALD STREET, HURSTVILLE - SECTION 96 MODIFICATION FOR RELOCATION OF GARAGE AND NEW BBQ AREA (2003/DA-680REV1)

(Report by Development Assessment Officer, Mr I Kokotovic)

DAC034-10 HUR - 148 CARRINGTON AVENUE, HURSTVILLE, SECTION 96 MODIFICATION TO INCREASE HEIGHT OF DWELLING BY 300MM (2009/DA-361REV1)

(Report by Team Leader Development Assessment, Ms L Locke and Development Assessment Officer, Mr P Nelson)

DAC035-10 PK - 345 BELMORE ROAD, RIVERWOOD, DEMOLITION OF EXISTING SERVICE STATION AND THE CONSTRUCTION OF A NEW FIVE STOREY MIXED USE DEVELOPMENT WITH STRATA SUBDIVISION (09/DA-453:2)

(Report by Senior Development Assessment Officer, Mr I Karaman)

DAC036-10 PK - 19 THURLOW STREET, RIVERWOOD - CONVERSION OF AN EXISTING OUTBUILDING TO A SECONDARY DWELLING (09/DA-449)

(Report by Development Assessment Officer, Ms D Fellows)

DAC037-10 PK - 85 LUGARNO PARADE, LUGARNO - EXTENSION OF THE FIRST FLOOR DECK INCLUDING A NEW AWNING AND NEW STAIRCASE TO EXISTING DWELLING (09/DA-467)

(Report by Development Assessment Officer, Mr R Guirguis)

DAC038-10 PK - 3 MARINE DRIVE, OATLEY - SECTION 96 MODIFICATION TO REMEDY UNAUTHORISED WORKS FROM ORIGINALLY APPROVED ALTERATIONS AND ADDITIONS (2006/DA-56REV2)

(Report by Development Assessment Officer, Mr I Kokotovic)

DAC039-10 PK - 43 MULGA ROAD, OATLEY - DEMOLITION OF PART OF THE EXISTING GARAGE AND ALTERATIONS AND ADDITIONS TO EXISTING COMMERCIAL/RESIDENTIAL DEVELOPMENT (09/DA-263)

(Report by Senior Development Assessment Officer, Ms P Bizimis)

DEVELOPMENT ASSESSMENT COMMITTEE
Wednesday, 7th April 2010

DAC032-10 HUR - 4A DONALD STREET, HURSTVILLE - SECTION 96 MODIFICATION TO REAR BALCONY AND SOUTHERN SIDE GROUND FLOOR SETBACK TO APPROVED DWELLING HOUSE

Applicant	A and K Engineering
Proposal	Section 96 modification to rear balcony and southern side ground floor setback to approved dwelling house
Zoning	Zone 2 - Residential
Planning instruments applicable	Hurstville Local Environmental Plan 1994, Development Control Plan No 1 - LGA Wide - Section 4.5 Single Dwelling Houses
Hurstville Local Environmental Plan 1994 interpretation of use	Dwelling house
Owner/s	Ms Amani Salameh
Existing development	Single dwelling house with outbuilding
Cost of development	$463,500.00
Reason for referral to Council	One submission received
Report author/s	Team Leader Development Assessment, Ms L Locke and Development Assessment Officer, Mr R Guirguis
File No	2009/DA-144REV1
Disclosure of political donations or gifts?	No

EXECUTIVE SUMMARY

1. The application initially was approved for the demolition of the existing dwelling and construction of a new two storey dwelling house with a front fence.

2. The subject site was identified to be affected by overland flow path due to a 3m wide easement running diagonally through the front section of the land from south to north. An overland flow study was prepared by GEC Consulting Group Pty Ltd dated 8 April 2009 was submitted upon lodgement.

3. This application seeks approval to modify the consent under Section 96 of the Environmental Planning and Assessment Act 1979, to expand the ground floor level and the first floor balcony to the rear.

4. The construction work has already been undertaken and the matter was referred to the Manager – Building Control who then advised that a Section 96 Modification application could be lodged for this work. This application is a result of that.

5. The proposal satisfies the provisions of Hurstville Local Environmental Plan 1994, and Development Control Plan No.1.

6. There was one (1) submission received in relation to the proposed development.

7. The application was deferred at the Development Assessment Committee meeting of 3 March 2010 for inspection and report by Ward and interested Councillors. The inspection was held on 7 April 2010.

AUTHOR RECOMMENDATION

THAT the application be approved in accordance with the conditions included in the report.
FURTHER THAT the matter be referred to the Manager – Building Control to take appropriate action under Part 6 of the Environmental Planning and Assessment Act 1979 in accordance with Council’s adopted Enforcement Policy.

REPORT DETAIL

BACKGROUND

The application was deferred at the Development Assessment Committee meeting of 3 March 2010 for inspection and report by Ward and interested Councillors. The inspection was held on 7 April 2010.

For the information of Councillors, please find the previous report following.

"DESCRIPTION OF THE PROPOSAL

The application initially was approved for the demolition of the existing dwelling and construction of a new two storey dwelling house with a front fence

This Section 96 application seeks approval to modify the approved design to expand the ground floor level by approximately 2.4sqm and redesign the first floor balcony to the rear.

The approved rear first floor balcony is facing north east and overlooking the rear yard. The subject balcony is located above the ground floor patio. As the area of the patio is larger than the area of the balcony, the pitched roof of the ground floor patio surrounds the perimeter of the balcony.

The modified design rather than imbedding the balcony within the roof of the patio has eliminated the roofed portion surrounding the balcony, replaced it with an elevated planter bed by extending the balcony’s floor out to the same alignment as the patio below, and extended the main roof above the first floor balcony to suit.

The approved balcony had dimensions of 2m x 6.5m and the extended portion is a 600mm wide strip around the perimeter of the balcony measuring 6.3sqm. This proposed extended portion will consist of planter beds and will not be trafficable. Hence the approved dimensions of the trafficable portion of the balcony will remain unaltered.

The remainder of the modified works involve the extension of the rear south eastern corner of the dwelling by an additional 2.4sqm. The approved dwelling had an indentation extending 6m along the eastern elevation to the rear and another 6m along the southern elevation from the side.

This indentation has been reduced by approximately 200mm from both sides of the corner as a result of an error of judgment during construction. This has resulted in an additional 2.4sqm being added internally to the kitchen area on the ground floor only.

Notwithstanding, the southern side setback will maintain a distance of 900mm from the side boundary at ground floor level and the first floor level southern side setback will remain unaltered at 1.5m.

BACKGROUND

27 Aug 09 Initial application endorsed (09/DA-144)

30 Nov 09 Subject Section 96 application lodged (09/DA-144REV01)

24 Dec 09 Notification period ended.

DESCRIPTION OF THE SITE AND LOCALITY

The site is a rectangular shaped site with a frontage of 14.325m to Donald Street and an area of 508.6sqm. The site is located on the north eastern side of the street. Existing on the site is a single storey weatherboard dwelling house with a metal shed located at the rear of the property.

Adjoining the site to the north west is a single storey brick dwelling house and a two storey brick dwelling house to the south east. Located at the rear of the site is the rear yard and swimming pool area of a two storey dwelling house fronting Hodge Street. The area is generally low density and residential in character.

COMPLIANCE AND ASSESSMENT

The development has been inspected and assessed under the relevant Section 79C(1) "Matters for Consideration” and Section 96 of the Environmental Planning and Assessment Act 1979. The relevant issues raised are discussed below.

Heads of Consideration in accordance with the Environmental Planning and Assessment Act 1979

“Section 96 (1A) Modifications involving minimal environmental impact - A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if:

(a) It is satisfied that the proposed modification is of minimal environmental impact, and
(b) It is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and
(c) It has notified the application in accordance with:
(i) The regulations, if the regulations so require, or
(ii) A development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and
(d) It has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be.”

Comment: The modified design is considered to be of minimal environmental impact. The additional floor space equates to 2.4sqm at ground floor level only and the subject dwelling remains defined as a two storey single dwelling house. The landscaping conditions will remain complying and the development is considered to remain substantially the same. The application has been notified pursuant to Council’s Development Control Plan No1 – LGA Wide – Section 2.2 and there was one (1) submission received in relation to the modifications.

1. Environmental Planning Instruments

HURSTVILLE LOCAL ENVIRONMENTAL PLAN

The land is zoned 2 – Residential and the proposed use is permitted within the zone. The proposal meets the zone objectives.

Clause 15 – Services

The existing infrastructure is considered adequate to accommodate the proposed land use and the stormwater is proposed to be collected into a 3600L rainwater tank with the overflow line discharging to the existing stormwater easement onsite via a gravity fed line. The area falls under the Wolli Creek catchment area.

STATE ENVIRONMENTAL PLANNING POLICY NO 55 – REMEDIATION OF LAND

The subject site is zoned residential and, given the types of uses permissible within the residential zones, it is considered unlikely that the land is contaminated.

2. Draft Environmental Planning Instruments

There are no drafts Environmental Planning Instruments that are relevant to the proposed development.

Any other matters prescribed by the Regulations

The Regulations prescribe the following matters for consideration for development in the Hurstville Council area:

Safety standards for demolition and compliance with AS 2601 - 2001 apply to the demolition of any buildings affected by the proposal.

3. Development Control Plans

DEVELOPMENT CONTROL PLAN NO 1 – LGA WIDE – SECTION 3.1 CAR PARKING

*Development*	*Standard*	*Provided*	*Complies*
Single dwelling House	2 spaces for 3 bedrooms or more	Two (2) car spaces provided under existing carport	Yes

The proposal complies with the requirements of Development Control Plan No 1 - LGA Wide – Section 3.1 Car Parking.

DEVELOPMENT CONTROL PLAN NO 1 – LGA WIDE – SECTION 4.5 SINGLE DWELLING HOUSES

*Single Dwelling House*	*Standard*	*Proposal*	*Complies*
Car Parking and Access – Setback from boundary	Garages, Carports must be behind the front boundary setback or a minimum of 4.5m, whichever is greater	8.5m as approved	Yes
Car Parking and Access – Occupy no more than 40% of frontage	Driveways, access lanes and car parking spaces must not occupy more than 40% of the frontage where it is 20m or less	25% as approved	Yes
Landscaped Open Space 50% of site Max 20% impervious Min 80% pervious Min 30% deep soil	254.3sqm 50.86sqm 203.44sqm 76.29sqm	289.22sqm (56.8%) 29.55sqm (10.2%) 259.67sqm (89.7%) 94 sqm (32.5%)	Yes Yes Yes Yes
Floor Space Ratio	Maximum FSR of 0.45:1	N/A due to first floor setback remaining unaltered at 1.5m	Yes
Side Setback-for dwellings containing 1 or 2 storey	Min 900mm	900mm-1.13m ground floor and 1.5m-2.2m first floor	Yes
Minimum Setback from the front boundary	Minimum of 4.5m from the front boundary	8.5m as approved	Yes
Solar Design/Energy Efficiency	Private open space of adjoining buildings to receive minimum 4hrs sunlight between 9am-3pm on 22 June	Yes	Yes
Height	Max External Wall height of 7.2m Max height to Ridge of 9m	6.9m as approved 8.6m as approved	Yes Yes

The proposal complies with the Single Dwelling Houses provisions.

4. Impacts

Natural Environment

There are no trees proposed to be removed as a result of the subject modifications and stormwater is to drain by gravity into the existing 3m wide storm water easement located on site.

Built Environment

Streetscape

There will be no further streetscape impact as the modified portion of the building cannot be seen from the street.

Design

The modified design is considered simplistic, ordinary yet satisfactory. It remains clear of the stormwater easement running diagonally through the site.

Overshadowing

All neighbouring properties will receive the minimum required solar access as the majority of the shadow is reflected over the street due to the optimum orientation of the site facing south west.

Privacy

There is a possibility of overlooking from the north western side of the modified first floor rear balcony however, the impact is considered minor in nature and can be overcome by the use of a privacy screen along the north western elevation.

Heritage

The subject property is not listed as heritage item and is not located within the vicinity of a heritage listed item.

Social Impact

There is no adverse social impact.

Economic Impact

There is no adverse economic impact.

Suitability of the Site

The site is considered to be suitable in terms of its size, shape, topography and orientation. The site is not prone to bush fires, does not contain acid sulphate soils and believed not to be contaminated given its history of residential land use.

The site contains a 3m wide stormwater easement running diagonally through from south to north and is affected by overland flow path. The existence of the easement is not considered to hinder the suitability of the site for the development.

Unauthorised Works

As previously mentioned, the subject modifications and works have already been executed. It is recommended that the matter be referred to the Manager – Building Control to take appropriate action under Part 6 of the Environmental Planning and Assessment Act 1979 in accordance with Council’s adopted Enforcement Policy.

5. REFERRALS, SUBMISSIONS AND THE PUBLIC INTEREST

Resident

Adjoining residents were notified by letter and given fourteen (14) days in which to view the plans and submit any comments on the proposal. There was one (1) submission received in relation to the development.

Privacy

The objector has expressed concerns in relation to loss of privacy from all first floor windows and the two (2) balconies along the north western elevation (front and rear facing). The objector suggests that a privacy screen to be installed along the north western side of all balconies and the use of obscured glass for all windows along the north western elevation

Comment: The site contains a 3m wide stormwater easement running diagonally from south to north and is affected by overland flow path. Whilst the existence of the easement is not considered to hinder the suitability of the site for the development, it has resulted in two (2) major design factors indirectly concerning the privacy issue to the north west. These design factors are:

1. Having the dwelling substantially pushed to the rear of the property to avoid construction over the stormwater pipelines has subsequently increased the exposure of the north western adjoining property especially from the modified rear balcony and,

2. Due to the possible overland flow path, the approved design must maintain a finished floor level of RL48.03 which is 300mm above flood levels and 1m at most above natural ground level from the rear. Consequently, this has resulted in having the building itself being elevated from the rear enabling overlooking to the north west.

Whilst the subject dwelling remains in full compliance with Council’s height controls, it is the fact that the dwelling has been pushed so far back towards the rear of the property that is considered the root of this privacy issue.

As such, a condition of consent has been added to protect the privacy of the adjoining north western property by requiring a 1.8m privacy screen to be installed to the north western elevation of the rear facing first floor balcony as well as the front facing first floor balcony.

The submission also suggests that all first floor windows along the north western elevation have their glass obscured.

In this regards, there are three (3) windows in question. One (1) of which is serving the stairwell, its primary purpose is to let natural light in, and the remaining windows are serving both bedroom 2 and bedroom 4.

The subject both windows are considered to be serving low traffic areas, therefore, conditioning the subject windows to have frosted glass is considered unwarranted.

Unauthorised work

The objector expressed some concerns in relation to the unauthorised works undertaken quoting:

“Exactly how this situation was allowed to manifest and reach a position whereby the Principal Certifying Authority could not/did not halt construction and take remedial action is open to conjecture, but nonetheless, it is very unsatisfactory.”

Comment: Council is not the Principal Certifying Authority in this occasion. Comments relating to the process or the chain of event concerning this matter are considered to be outside the scope of this assessment.

However, this matter was referred to the Manager – Building Control who advised the Certifier to cease construction and apply for a Section 96 application for the unauthorised works.

Council Referrals

No additional referrals were necessary for the subject application.

6. CONCLUSION

The modified design is considered to remain in compliance with Council’s requirements and satisfactory to the provisions of Hurstville Local Environmental Plan.

The site is considered to be severely constrained by the position of a 3m wide drainage easement running diagonally through the site from south to north. This has resulted in the building being predominantly built towards the rear of the property and approximately 1m above natural ground level due to the 1 in 100 year overland flow levels. This was all part of the original consent.

Consequently, this has limited the design to a position where overlooking could be gained from the rear balcony to the north west.

In this regards, a condition of consent has been added to protect the privacy of the adjoining north western property by requiring a 1.8m privacy screen to be installed to both first floor balconies.

Although the modified design has increased the floor area of the subject balcony, the trafficable dimensions of the balcony remain unaltered as the extended portion form a 600mm wide strip of planting bed around the perimeter of the balcony.

In relation to the eastern corner of the dwelling that was shifted by 200mm towards the south eastern side, the side setback remains at 1.5m for the first floor and the additional floor space gained equates to approximately 2.4 sqm on the ground floor only.

RECOMMENDATION

Pursuant to the provisions of Section 96 of the Environmental Planning and Assessment Act, as amended, development consent 09/DA-144 granted on 27 August 2009 for the demolition of the existing dwelling house and construction of a two storey brick dwelling house with a front fence on Lot 25 DP7279 and known as 4A Donald Street Hurstville, is amended in the following manner:

A. By amending Condition 2 (OC2) to read as follows:

2. Approved Plans

*Plan No*	*Plan Date*	*Description*	*Prepared By*
Sheet 1	Received 30 Nov 09	Site Plan	A and K Engineering Group
Sheet 2	Received 30 Nov 09	Floor Plans	A and K Engineering Group
Sheet 3	Received 30 Nov 09	Elevations	A and K Engineering Group
Sheet 4	1 Apr 09	Landscape Plan	A and K Engineering Group
Sheet 7	1 Apr 09	Section AA	A and K Engineering Group

B. By inserting the following condition under “Before occupation”

* Due to the rear of the dwelling being elevated by 1m above natural ground level, two (2) 1.8m high privacy screens must be installed along the north western elevation of the front facing balcony and the modified first floor rear facing balcony, prior to the issue of any Occupation Certificate. The front facing balcony must have its screen extended from the western wall of bedroom 4 by a minimum of 1m in width around the curvature of the balcony. This condition has been imposed to protect the privacy of the north western adjoining property.

FURTHER THAT the matter be referred to the Manager – Building Control to take appropriate action under Part 6 of the Environmental Planning and Assessment Act 1979 in accordance with Council’s adopted Enforcement Policy."

* * * * *

DECISION - DAC

THAT the application be approved in accordance with the conditions included in the report.
FURTHER THAT the matter be referred to the Manager – Building Control to take appropriate action under Part 6 of the Environmental Planning and Assessment Act 1979 in accordance with Council’s adopted Enforcement Policy.

(Moved Councillor C Hindi / Seconded Councillor D Perry)

APPENDIX

DEVELOPMENT ASSESSMENT COMMITTEE
Wednesday, 7th April 2010

DAC033-10 HUR - 60 DONALD STREET, HURSTVILLE - SECTION 96 MODIFICATION FOR RELOCATION OF GARAGE AND NEW BBQ AREA

Applicant	Harry Kalodakis
Proposal	Section 96 modification for relocation of garage and new bbq area
Zoning	Zone 2 - Residential
Planning instruments applicable	Hurstville Local Environmental Plan 1994, Development Control Plan No 1 - LGA Wide - Section 3.1 Car Parking, Section 4.3 Outbuildings, Section 4.5 Single Dwelling Houses
Hurstville Local Environmental Plan 1994 interpretation of use	Ancillary to dwelling house
Owner/s	Michael and Evelyn Kouros
Existing development	Single dwelling house and swimming pool
Cost of development	N/A
Reason for referral to Council	Variation to DCP 1
Report author/s	Development Assessment Officer, Mr I Kokotovic
File No	2003/DA-680REV1
Disclosure of political donations or gifts?	No

EXECUTIVE SUMMARY

1. The Section 96 application seeks approval for a modification to a consent, which consists of relocating and re-orientation of the garage and a new addition of a covered BBQ area. The original approval was for a first floor addition to the dwelling and alterations, and the construction of a garage/outbuilding.

2. The proposal, although compatible with the existing built and approved form on the site and in relation to surrounding premises, does not comply with the required landscaped area. As such it is considered an overdevelopment and is incompatible with Council’s objectives. The previously approved design for the garage is considered more appropriate when applying Council’s controls.

3. The proposal has one (1) non compliance with the numerical requirements of Council’s Development Control Plan, and otherwise provides on-site solutions which are considered excessive beyond development guidelines.

4. No objections to this proposal have been received.

AUTHOR RECOMMENDATION

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

REPORT DETAIL

DESCRIPTION OF THE PROPOSAL

The Section 96 Modification seeks to relocate and re-orientate a garage and add a new BBQ area.

* Move the approved garage into the rear northern corner of the site and make it into a masonry double garage rather than a tandem garage. Internally is proposed a store area and shower/WC (similar to the originally approved WC/Shower inside the garage), yet despite this the size of the garage is to be reduced from 46sqm to 42sqm.

* A new and additional covered BBQ area with fixed BBQ appliances is to be attached to the east of the proposed garage adjacent to the rear boundary. Within the original approval, a BBQ area (proposed in the northern corner of the site) was deleted from the approved Development Application and Construction Certificate plans. This modification seeks to re-establish the BBQ albeit in a different location.

The new BBQ area is proposed at 18.24sqm.

* The proposal adds 43sqm of built upon area with the extension of the garage to the rear of the site (thereby creating more driveway area) and due to the new proposed BBQ area.

* Landscaped areas do not comply and provide a significant shortfall in overall required landscaped area, as well as providing an overwhelming surplus of impervious covered land, beyond the maximum allowed area.

BACKGROUND

26 Aug 03 Original Development Application lodged with Council.

2 Nov 03 Development Consent issued.

3 Feb 10 Section 96 Modification application (Rev01) lodged with Council, seeking garage relocation and re-orientation and the new BBQ area.

DESCRIPTION OF SITE AND LOCALITY

The subject property is a regular allotment with a width of 14.33m and an overall site area of approximately 521sqm. The site has no significant slope and is oriented towards the south west and is on the northern side of Donald Street. The site is adjoined west by a single storey dwelling and to the east and rear by two (2) storey dwellings.

This area is characterised by a mix of single/two (2) storey dwellings with low to medium density developments.

COMPLIANCE AND ASSESSMENT

The development has been inspected and assessed under the relevant Section 79C(1) "Matters for Consideration" of the Environmental Planning and Assessment Act 1979.

1. Environmental Planning Instruments

SECTION 96 OF THE ENVIRONMENTAL PLANNING AND ASSESSMENT ACT 1979

The proposal has been assessed in relation to the following clauses under Section 96 of the Environmental Planning and Assessment Act 1979 (as amended):

“

96 Modification of consents—generally

(1A) Modifications involving minimal environmental impact

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

(a) it is satisfied that the proposed modification is of minimal environmental impact, and”

Comment: The proposed alterations to the originally approved development are considered to increase the environmental impact of the approval. The relocation of the garage to the rear and the new BBQ area are seen as being inappropriate for the site and overall leading to an overdevelopment on-site. The modification is not satisfactory.

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

Comment: Elements of the proposal constitute a development similar to the originally approved, but through amending the design of the outbuildings, and increasing the size, it is considered a large proposed, and therefore not the same. The modification is not satisfactory.

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

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

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

Comment: The proposal has been notified in accordance with Council’s Development Control Plan No 1 – LGA Wide.

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

Comment: No neighbour submissions were received in relation to this application.

HURSTVILLE LOCAL ENVIRONMENTAL PLAN

The land is zoned 2 – Residential and is a permissible use in the zone. The proposal meets the zone objectives.

Clause 14 – Tree Preservation Orders

No trees affected by this order are impacted on by this proposal.

Clause 15 – Services

This clause is not affected by any consequence of the proposal, as the roofed area from which storm-water is directed is only increased a further 14.24sqm. The original consent condition is sufficient.

STATE ENVIRONMENTAL PLANNING POLICY NO 55 - REMEDIATION OF LAND

The subject site is zoned residential and, given the types of uses permissible within the residential zones, it is considered unlikely that the land is contaminated.

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

2. Draft Environmental Planning Instruments

There are no draft Environmental Planning Instruments applicable to this application.

3. Development Control Plans

The proposal has been assessed against Council’s relevant Development Control Plans and Sections and below is a summary of the non compliances.

DEVELOPMENT CONTROL PLAN NO 1 – LGA WIDE – SECTION 3.1 CAR PARKING

DCP – Car Parking	Standard	Proposal	Complies
Car parking space requirements for a residential dwelling with 3 or more bedrooms	2 car space requirements	2 car spaces behind building line in the rear double garage	Yes
Car space dimension requirements and garage door clearance	- Car spaces 5.4m x 5.5m (width x length) - Double garage door 4.8m clearance	- 5.4m x 5.5m - 4.8m provided	Yes

As can be seen from the table above, the proposal complies with Section 3.1.

DEVELOPMENT CONTROL PLAN NO 1 – LGA WIDE – SECTION 4.3 OUTBUILDINGS

The following is an assessment of the detached double garage/WC/storage outbuilding at the rear of the allotment.

Outbuildings
Standard
Proposal
Complies
Size 20sqm and over requires approval 42sqm
Yes
Distance from boundary Can extend to boundary 500mm off the north west and north east boundaries
Yes
Recommended Maximum Height 3 metres from ceiling or top plate height to natural ground level 2.7m
Yes
Stormwater Guttering and down piping to be provided Connection shown
Yes
The following is an assessment of the BBQ area (covered with pitched roof) attached to the garage.

Outbuildings
Standard Proposal Complies
Size 20sqm and over requires approval 29sqm
Yes
Distance from boundary Can extend to boundary 500mm off the north east boundary
Yes
Recommended Maximum Height 3 metres from ceiling or top plate height to natural ground level 2.7m
Yes
Stormwater Guttering and down piping to be provided Connection shown
Yes
As can be seen from the table above, the proposal complies with Section 4.3.

DEVELOPMENT CONTROL PLAN NO 1 – LGA WIDE – SECTION 4.5 SINGLE DWELLING HOUSES

Single Dwelling Houses Controls Standard Proposal Complies
Site Area 521sqm
Front Setback 4.5m (primary frontage 4.75m (existing)
Yes
Rear 900mm 14.5m (existing)
Yes
Ground Floor Side Setback 900mm 1.65m (existing)
Yes
Building Control 4.5.3.3 - Building Envelope
- 1.5m first floor side setback
- 0.45 FSR 1.5m first floor setback
(existing)
Yes
Height Maximum 9m Ridge
7.2m - External Wall to Ceiling 8.6m (existing)
6.5m (existing)
Yes
Yes
Approved Landscaped Open Space Min 50% site cover (260.57sqm)

Max.20% imp. (52.15sqm)

Min. 30% deep soil (78.22sqm) 50.04% (260.73sqm)

60.22% (157.01sqm)

39.78% (103.72sqm)
Yes

No (1)

Yes
Proposed Modified Landscaped Open Space Min 50% site cover (260.57sqm)

Max.20% imp. (52.1sqm)

Min. 30% deep soil (78.15sqm) 41.79% (217.73sqm)

72.11% (157.01sqm)

27.89% (60.72sqm)
No (2)
No (3)

No (4)
Parking Spaces Required 2 car spaces behind the building line 2 car spaces provided in garage
Yes
Privacy Windows 9m separation or
offset by 1m Not altered
Yes
Solar Design/Energy Efficiency Private open space of adjoining buildings to receive minimum 4hrs sunlight between 9am – 3pm on 22 June.

Solar access to be preserved. Not altered
Yes
(1) Existing Impervious Landscaped Area

This reflects an existing approved non compliance as assessed in 2003.

(2) Landscape Open Space – Total Site Area

The overall proposed landscaped open space does not comply, providing only 41.79% of the total site area when 50% is required, falling short of the required open landscaped area by 42.84sqm. The modification creates this non compliance from the previously approved and complying design.

Given the area of the site is 521sqm and there are already a number of substantial approved structures on-site (two (2) storey dwelling, inground swimming pool, tandem garage and WC/shower) there is no justification for the varying of the landscaping controls, through an increase of built environment.

(3) Maximum Allowed Impervious Area

The impervious component creates a severe non compliance in providing an excess of 104.91sqm impervious area from that allowed under the current landscaping controls.

(4) Minimum Required Deep Soil Area

The deep soil component of the site does not comply, providing only 11.65% of the total site, when 15% is required. The modification creates this non compliance, from the previously approved and complying design.

These non compliances are regarded as primary reasons for refusal of the development application.

Note: After a site inspection it was noticed that the plans provided were not accurate in detailing site coverage of the site sufficiently to make an assessment as accurate as it otherwise would have been. In effect, the landscaping figures in the assessment are an estimate of what was witnessed on-site.

4. Impacts

Natural Environment

It is considered the proposal will not have any adverse impact on the natural environment. No trees are to be affected by this proposal despite the increase in building area.

Built Environment

The development does not impact on the streetscape as it cannot be seen from the street. The proposal is considered an overdevelopment in context of the site and the structures already approved. Although in scale with surrounding premises, the overall impact of all the buildings on-site should this modification be approved is considered excessive and not complying with Council’s development objectives and controls for the zone. The development will have an adverse social impact, on the future character of the community, and would create an undesirable precedent for single dwelling design solutions. There is minimal impact on the adjoining premises from that previously approved, but the proposal is excessive beyond a reasonable design, given the considerable development already approved onsite and the size of the allotment.

Social Impact

The development carries no negative social impact.

Economic Impact

The development carries no economic impacts.

Suitability of the Site

It is considered that the allotment is suitable for the proposed development in terms of the allotment size, shape, orientation and topography. The site is not bushfire, flood, acid sulfate affected, nor contaminated. The site is stable.

5. REFERRALS, SUBMISSIONS AND THE PUBLIC INTEREST

Resident

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 were received in relation to this development.

Council Referrals

No Council Officer referrals were required.

6. CONCLUSION

The application is for a modification to a consent, which consists of relocating and re-orientation of the garage, and a new addition of a covered BBQ area. The proposal does not comply in full with Development Control Plan 1. The proposal does not comply with the provisions of the relevant sections of the Environmental Planning and Assessment Act 1979 (as amended).

RECOMMENDATION

THAT pursuant to Section 80(1)(b) of the Environmental Planning and Assessment Act, 1979, as amended, the Council, refuses Development Application 03/DA-680REV01 for the Section 96 modification for relocation of garage and new BBQ area on Lot 24, DP 8435 and known as 60 Donald Street, Hurstville, for the following reasons:

1. Pursuant to Section 79C(1)(a)(iii) of the Environmental Planning and Assessment Act, 1979, as amended, the proposed development does not achieve the minimum required ‘Landscaped open area’ under Development Control Plan No 1 – LGA Wide - Section 4.5.8 Single Dwelling Houses.

2. Pursuant to Section 79C(1)(a)(iii) of the Environmental Planning and Assessment Act, 1979, as amended, the proposed development does not adhere to the maximum allowed ‘Impervious landscaped area’ under Development Control Plan No 1 – LGA Wide - Section 4.5.8 Single Dwelling Houses.

3. Pursuant to Section 79C(1)(a)(iii) of the Environmental Planning and Assessment Act, 1979, as amended, the proposed development does not adhere to the minimum required ‘Deep Soil landscaped area’ under Development Control Plan No 1 – LGA Wide - Section 4.5.8 Single Dwelling Houses.

4. Pursuant to Section 79C(1)(b) of the Environmental Planning and Assessment Act, 1979, as amended, the proposed development will likely cause adverse social impact on the existing and future character of the locality.

5. Pursuant to Section 79C(1)(c) of the Environmental Planning and Assessment Act, 1979, as amended, the proposed development is considered an overdevelopment and thus not suitable for the site.

6. Pursuant to Section 79C(1)(e) of the Environmental Planning and Assessment Act, 1979, as amended the proposed development is not considered to be in the public interest as it will set an undesirable precedent, for other similar sites which are to be assessed, considering the excessive nature of the proposal and the non compliances.

* * * * *

DECISION - DAC

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

(Moved Councillor C Hindi / Seconded Councillor A Wagstaff)

APPENDIX

DEVELOPMENT ASSESSMENT COMMITTEE
Wednesday, 7th April 2010

DAC034-10 HUR - 148 CARRINGTON AVENUE, HURSTVILLE, SECTION 96 MODIFICATION TO INCREASE HEIGHT OF DWELLING BY 300MM

Applicant	Lina Auon
Proposal	Section 96 modification to increase height of dwelling by 300mm
Zoning	Zone 2 - Residential
Planning instruments applicable	Hurstville Local Environmental Plan 1994, Development Control Plan No 1 - LGA Wide - Section 4.5 Single Dwelling Houses
Hurstville Local Environmental Plan 1994 interpretation of use	Dwelling house
Owner/s	Lina Auon
Existing development	Dwelling under construction
Cost of development	N/A
Reason for referral to Council	One submission received
Report author/s	Team Leader Development Assessment, Ms L Locke and Development Assessment Officer, Mr P Nelson
File No	2009/DA-361REV1
Disclosure of political donations or gifts?	No

EXECUTIVE SUMMARY

1. Development consent was originally granted for the demolition of existing structures and the construction of a new two storey dwelling. This Section 96 application seeks to increase the height of the dwelling by raising the ground floor slab of the dwelling by 300mm.

2. The proposal complies with Council’s Local Environmental Plan and Development Control Plan No 1 with the exception of the external wall height of the dwelling. However this non compliance can easily be overcome and a condition is recommended to ensure compliance.

3. One (1) submission was received in response to the notification of the application.

AUTHOR RECOMMENDATION

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

REPORT DETAIL

DESCRIPTION OF THE PROPOSAL

The Section 96 application seeks approval for an increase in the height of the building by 300mm. The ground floor slab of the dwelling will be 300mm higher than originally approved, therefore increasing the height of the whole dwelling.

The applicant has stated that the increase in height is sought due to the dwelling being lower than the street. The increase in height is proposed to facilitate better drainage of the site.

BACKGROUND

11 Dec 09 Development consent granted for demolition of dwelling and construction of new dwelling.

21 Jan 10 Current modification application lodged.

3 – 18 Feb 10 Proposal on neighbour notification. Council incorrectly notified the proposal as modifications to a dual occupancy development.

22 Feb – 8 Mar 10 Proposal renotified correctly.

DESCRIPTION OF THE SITE AND LOCALITY

The site is a rectangular shaped site with a frontage of 15.09m to Carrington Avenue and an area of 606.96sqm. The site is located on the north east side of the street. The dwelling the subject of this application is currently under construction.

Adjoining the site to either side and opposite are single dwelling houses. The area is generally residential in character.

COMPLIANCE AND ASSESSMENT

The development has been inspected and assessed under the relevant Section 79C(1) "Matters for Consideration" of the Environmental Planning and Assessment Act 1979.

1. Environmental Planning Instruments

SECTION 96 OF ENVIRONMENTAL PLANNING AND ASSESSMENT ACT 1979

The following is an assessment of the proposal in accordance with Section 96 of the Environmental Planning and Assessment Act 1979 (as amended):

“96 Modification of consents—generally

(1A) Modifications involving minimal environmental impact

(a) it is satisfied that the proposed modification is of minimal environmental impact, and”

Comment: The proposed alterations to the originally approved development are considered to be of minimal environmental impact. The increase in the ground floor height has the potential to impact on the privacy of the adjoining property to the south east through the windows to the dining and living areas. A condition is recommended for obscure glazing on these windows to minimise any impact.

Comment: The proposal constituted substantially the same development as that which was originally approved.

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

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

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

Comment: The proposal has been notified in accordance with Development Control Plan No 1. One (1) submission was received, this is discussed in detail in a later part of this report.

HURSTVILLE LOCAL ENVIRONMENTAL PLAN

The land is zoned 2 – Residential and dwelling houses are a permissible use in the zone. The proposal meets the zone objectives.

Clause 15 – Services

Facilities for the supply of water and removal of sewage and stormwater are available from the site. This modification application does not alter the supply of services to and from the land.

2. Draft Environmental Planning Instruments

There are no draft environmental planning instruments applicable to this application.

3. Development Control Plans

DEVELOPMENT CONTROL PLAN NO 1 – LGA WIDE – SECTION 4.5 SINGLE DWELLING HOUSES

Section 4.5 - Single Dwelling Houses	Standard	Proposal	Complies
Front Setback	Garages, carports must be behind the front boundary setback or a minimum of 4.5m, whichever is greater	5.8m	Yes
Car parking and Access	Driveways, access lanes and car parking spaces must not occupy more than 40% of the frontage where it is 20m or less	No alteration to original approval	N/A
Side Setback	First floor 1.5m	1.5m	Yes
Height	External wall height 7.2m Height to the ridge 9m	7.264m 8.75m	No (1) Yes
Solar Design/Energy Efficiency	Private open space of adjoining buildings to receive minimum 4hrs sunlight between 9am – 3pm on 22 June Solar access to be preserved	All adjoining private and open space will receive the minimum required sunlight	Yes
Landscaped Area	Minimum 50% Required Maximum Impervious area = 20% Minimum Deep Soil = 30% of landscaped area	50.76% 17.41% 84.16%	Yes Yes Yes

(1) Height

The proposed variation to the external wall height is minor, only being 64mm. Nevertheless there is no valid reason why the proposal could not comply with the control as the internal floor to ceiling heights within the dwelling are generous. A condition requiring a compliant external wall height of 7.2m is recommended.

4. Impacts

Natural Environment

The impact of this development on the natural environment was considered acceptable as part of the original approval. Nothing in this modification application alters this.

Built Environment

The only alteration to the development from what was originally approved is the additional height. The increase in height will still result in the adjoining property receiving a minimum of 3 hours of sunlight to their private open space.

The increase in the ground floor slab height has the potential to impact on the amenity of the adjoining property at 146 Carrington Avenue due to increased privacy impacts. To overcome this concern a condition is recommended so that the windows for the ground floor dining and living areas incorporate obscured glazing.

Social Impact

The social impact of this development was considered acceptable as part of the original approval. Nothing in this modification application alters this.

Economic Impact

The economic impact of this development was considered acceptable as part of the original approval. Nothing in this modification application alters this.

Suitability of the Site

Nothing in this modification application affects the suitability of the site for the development as originally assessed.

5. REFERRALS, SUBMISSIONS AND THE PUBLIC INTEREST

Resident

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.

External Wall Height Controls

The proposal does not comply with Council’s external wall height controls.

Comment: Although the non compliance is minor in nature there is no valid reason why the external wall height cannot comply. A condition is recommended ensuring compliance.

Drainage

Better drainage cannot be provided by the increase in height.

Comment: The increase in the height of the ground floor slab will allow the provision of a pipe with appropriate fall to drain roof water to the street. This is consistent with Council’s requirements.

The increase in height does not match with neighbouring development

Comment: The increase in height does not unacceptably alter the appearance of the dwelling from the street from that which was originally approved.

Overshadowing

The height will further increase the overshadowing impact on the adjoining dwelling.

Comment: The increase in height does have a further impact on the overshadowing to the property to the south, however this property will still achieve a minimum of (3) three hours of solar access.

Privacy

There is an increased privacy impact on the adjoining dwelling.

Comment: It is agreed that the proposal in its current form has a privacy impact and as such conditions requiring obscured glazing on the ground floor living area windows are recommended.

Air Circulation

The proposal will affect air circulation.

Comment: There is nothing to support this claim, however, given that there is a 4m separation between the subject dwelling and the adjoining dwelling to the south it is considered unlikely.

Council Referrals

None required.

6. CONCLUSION

With the imposition of conditions relating to obscured glazing and a compliant external wall height this modification application is considered to have a minor environmental impact and is substantially the same development as that to which consent was originally granted.

RECOMMENDATION

Pursuant to the provisions of Section 96 of the Environmental Planning and Assessment Act, as amended, development consent 09/DA-361 granted on 11 December 2009 for the demolition of the existing single dwelling house, and construction of new dwelling house on Lot 19 DP 8011 and known as 148 Carrington Avenue, Hurstville, is amended in the following manner:

A By amending Condition 2 to read:

2. Approved Plans

Plan No	Plan Date	Description	Prepared By
09.13/DA01	Received 12 Nov 09	Site Analysis Plan	A Chandrahasan
09.13/DA02A	19 Jan 10	Ground Floor Plan	A Chandrahasan
09.13/DA03A	19 Jan 10	First Floor Plan	A Chandrahasan
09.13/DA04A	19 Jan 10	Sections and Elevations	A Chandrahasan
09.13/DA05A	19 Jan 10	Elevations	A Chandrahasan

B. Inserting the following additional conditions:

Condition 3(a)

OC8:-

a) The external wall height of the dwelling must not exceed 7.2m at any point.

b) The ground floor windows serving the dining and family room on the south eastern elevation shall be obscured glazing to minimise any privacy impact on the adjoining dwelling.

* * * * *

DECISION - DAC

THAT the application be approved in accordance with the conditions included in the report, subject to Condition B being amended to read as follows:-

B. Inserting the following additional condition:

Condition 3(a)

OC8:-

(a) The ground floor windows serving the dining and family room on the south eastern elevation shall be obscured glazing to minimise any privacy impact on the adjoining dwelling.

(Moved Councillor C Hindi / Seconded Councillor D Perry)

APPENDIX

DEVELOPMENT ASSESSMENT COMMITTEE
Wednesday, 7th April 2010

DAC035-10 PK - 345 BELMORE ROAD, RIVERWOOD, DEMOLITION OF EXISTING SERVICE STATION AND THE CONSTRUCTION OF A NEW FIVE STOREY MIXED USE DEVELOPMENT WITH STRATA SUBDIVISION

Applicant	Mr F Daniel
Proposal	Demolition of existing service station and the construction of a new five storey mixed use development with strata subdivision
Zoning	Zone 3(c) - Business Centre
Planning instruments applicable	Hurstville Local Environmental Plan 1994, SEPP 1 - Development Standards, SEPP 65 - Design Quality in Residential Buildings, SEPP (Building Sustainability Index: BASIX), Greater Metropolitan Regional Environmental Plan No 2 - Georges River Catchment, Development Control Plan No 1 - LGA Wide - Section 3.1 Car Parking, Section 3.3 Access and Mobility, Section 3.4 Crime Prevention Through Environmental Design, Section 6.3 Riverwood
Hurstville Local Environmental Plan 1994 interpretation of use	Residential component - 'residential flat building' and retail component - 'shop'
Owner/s	Mr F Daniel
Existing development	Service station
Cost of development	$1,980,000.00
Reason for referral to Council	Two submissions received and non compliance with DCP 1
Report author/s	Senior Development Assessment Officer, Mr I Karaman
File No	09/DA-453:2
Disclosure of political donations or gifts?	No

EXECUTIVE SUMMARY

1. The application seeks approval for a five (5) storey mixed use building with two (2) levels of basement car parking and strata subdivision.

2. The proposed floor space ratio exceeds the maximum floor space ratio of 2:1 under Council’s Local Environmental Plan and the applicant’s objection to the development standard pursuant to SEPP No 1 is not well founded.

3. The proposal exceeds the maximum four (4) storey height, encroaches on the 8m rear setback and exceeds the maximum 2:1 floor space ratio requirements under Council’s Development Control Plan No 1 – LGA Wide – Section 6.3 Riverwood.

4. The proposal was notified and advertised in accordance with Council’s requirements and received two (2) objections.

AUTHOR RECOMMENDATION

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

REPORT DETAIL

DESCRIPTION OF THE PROPOSAL

The proposal seeks approval for the demolition of the existing service station across three (3) allotments at 345 Belmore Road, Riverwood to allow for the proposed construction of a five (5) storey mixed use development with a total of nine (9) residential units and 200 square metres of commercial space with basement parking. The proposed built form covers a corner site with three (3) street frontages at Belmore Road, Killara Avenue and at the rear lane way.

The development will comprise specifically of the following:

Ground Floor (Level 1) – one (1) commercial area comprising of 200 square metres

Upper Basement – Car park

Lower Basement – Car park

Level 2 – three (3) x two (2) bedroom units

Level 3 – three (3) x two (2) bedroom units

Level 4 – two (2) x three (3) bedroom units

Levels 5 – one (1) x three (3) bedroom unit

Vehicular access to the basement levels of the property is via rear lane. A lobby with lifts is located at the Killara Avenue street frontage.

The architectural plans were amended in minor form after comments from the Urban Design Review Panel in particular, the following:

* Changes to the Lobby door line forward to the linear line of the bin store and removing views of parked vehicles from the entranceway.

* Changes to the corner façade with lesser use of masonry in favour of a glass and louvered approach.

* Removal of top hat roof design and doughnut feature at the corner.

BACKGROUND

13 Nov 09 Application lodged with Council.

25 Nov-9 Dec 09 Notification period of application.

3 Dec 09 Application presented to Design Review Panel

10 Feb 10 Meeting with Applicant to discuss proposal and comments of Design Review Panel

19 Mar 10 Amended plans received by Council

7 Apr 10 Referral to Development Assessment Committee

DESCRIPTION OF THE SITE AND LOCALITY

The site is located on a prominent corner in the Riverwood Town Centre located at 345 Belmore Road, Riverwood. The site has generally a rectangular shape, which comprises of three (3) allotments of land and a total site area of 547.5sqm. The site is located on the western side of Belmore Road with a frontage of 17.98m with a splay of 3.035m to Belmore Road and 23.175m to Killara Avenue with a further splay of 2.995m to the rear lane. The site has a fall of 0.87m from west to east across the site, ie from the rear lane to Belmore Road.

Currently on the site is a two (2) storey building used as a service station which is proposed to be demolished. The surrounding development on Belmore Road is comprised of a mix of older buildings being commercial and retail shops generally one (1) to two (2) storeys in height and some with residences located above. To the rear of the site is zone 2 – Residential comprising predominantly of single dwellings.

The site is located near the northern end of the Riverwood Town Centre within approximately 350m from Riverwood Station.

COMPLIANCE AND ASSESSMENT

The development has been inspected and assessed under the relevant Section 79C(1) "Matters for Consideration" of the Environmental Planning and Assessment Act 1979.

1. Environmental Planning Instruments

HURSTVILLE LOCAL ENVIRONMENTAL PLAN

The land is zoned 3(c) - Business Centre and is a permissible use in the zone. The proposal generally meets the zone objective regarding a mixed use building within a business centre.

Clause 13 - Floor Space Ratio

The Local Environmental Plan also has the following additional requirements:

LEP Control Plan Complies
Total FSR 2:1 max 2.248:1 No
Non residential component 1:1 max 0.36:1 Yes
As indicated in the table above the proposed modifications result in a non compliance with Council’s Local Environmental Plan in regards to floor space ratio. The non compliance with the floor space ratio is discussed with greater detail in the following section under SEPP 1 Objection to this development standard.

Clause 14 – Tree preservation orders

Consent for removal of trees is not required as no trees are present on the site.

Clause 15 – Services

Pursuant to Clause 15, water supply, sewerage and drainage infrastructure is required to be available to the land. It is considered the above services can be provided to the proposed development on the land.

Clause 22 – Excavation, filling of land

The proposal will involve excavation of the land for the proposed basement. In consideration to this clause, a condition of consent is recommended that a geotechnical report be submitted to Council prior to the prior to the commencement of any work to ensure adequate regard is given to any potential impacts to existing drainage patterns and soil stability in the locality.

Clause 25A – Advertising and signage

No outdoor advertising or signage is proposed as part of the application.

STATE ENVIRONMENTAL PLANNING POLICY (SEPP) NO 1 – DEVELOPMENT STANDARDS

The proposed modification seeks a variation to the maximum permitted overall floor space ratio of 2:1 for buildings within zone 3(c) - Business Centre Zone of Riverwood Town Centre. A non complying floor space ratio of 2.248:1 is proposed, thus resulting in a variation to Clause 13(2a)(a) of the Hurstville Local Environmental Plan 1994. The applicant has lodged an objection under the requirements of State Environmental Planning Policy (SEPP) No 1 to the floor space ratio of 2:1.

Consideration to an Objection under SEPP 1 is considered on the basis to whether compliance with the development standard is unnecessary and/or unreasonable in the circumstances of the case.

The Land and Environment Court recommends that an objection under SEPP 1 should be determined by reference to the tests set out rather than by undertaking a 'merit assessment'.

The appropriate manner of dealing with a SEPP 1 objection is found in the judgment of Lloyd J in Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46, at par 26, where five (5) questions are posed.

These questions listed below form the basis for consideration to SEPP 1 objections.

“1. Is the planning control in question a development standard?”

Comment: The subject of the objection, that is floor space ratio is a development standard as referred to in Clause 13(2A)(a) Hurstville Local Environmental Plan 1994. A variation of an additional 0.248 of floor space ratio is sought in this case.

“2. What is the underlying purpose of the standard?”

Comment: The underlying purpose of the standard is to control the overall bulk and scale of the developments to achieve an urban character for the zone 3(c) - Business Centre. In this case, Hurstville Local Environmental Plan permits Riverwood Town Centre, a maximum floor space ratio overall of 2:1.

“3. Is compliance with the development standard consistent with the aims of the Policy, and in particular, does the development standard tend to hinder the attainment of the objects specified in Section 5(a)(i) and (ii) of the EPA Act?”

Comment: The development standard, floor space ratio in this case is consistent with the aim of the Hurstville Local Environmental Plan that permits a mixed use building to be designed with the appropriate floor space with respect to the desired urban character of Riverwood Town Centre.

The current proposed modification for additional floor space ratio is considered to be an overdevelopment of the site.

“4. Is compliance with the standard unreasonable or unnecessary in the circumstances of the case?”

Comment: The applicant’s objection to the development standard is based on the following:

* The additional floor on Level 5 is setback to reduce bulk and scale;
* Proposal has a scale and proportion that relates to context of existing and future streetscape;
* Roof top units better define the roof as a distinct top element, the building’s elemental definition being base, middle and top;
* Parking on site catered with additional floor space ratio;
* Roof top units exceed four (4) storey limit in Development Control Plan but setback from side boundaries to mitigate adverse impacts;
* Objective of floor space ratio respected in terms of proposed density and height and will not have adverse impact upon adjoining properties or streetscape and will improve design.

Land and Environment Court’s Planning Principle for the assessment of height, bulk and scale is exemplified in Veloshin v Randwick Council [2007] NSWLEC 428, whereby bulk and scale are generally considered to be subjective terms compared to requirements for floor space and height, which carry comparably greater weight with community input given through public exhibition via the involved Local Environmental Plan statutory process. The planning principle further elaborates that the requirement for a certain floor space ratio is reinforced as it relates to the desired urban character as sought through the planning control. In this case, the floor space ratio of 2:1 as a planning control is aimed to achieve a consistent urban character for the Riverwood Town Centre.

The proposed additional floor area results in approximately 136 square metres that equates to an increase in 0.248:1 of floor space ratio that will result inconsistency with the four (4) storey scale and character intended by the planning controls for the Riverwood Town Centre. The extent of the non compliance is considered to be incompatible with its location at a prominent corner within the heart of the Riverwood Town Centre as the proposed five (5) storey building will be clearly visible from within Riverwood vicinity and beyond and would further exacerbate the increase in scale with the adjoining zoned 2(a) – Residential at the corner of Killara Avenue and the rear laneway.

The proposal is not within the public interest and if approved would erode Council’s planning controls and would be incompatible in scale and character with the future development of the zone 3(c) - Business Centre in Riverwood Town Centre.

Given the reasons above, the non compliance of 0.248:1 in additional floor space ratio is therefore considered to be unreasonable and unnecessary in the proposed modification.

“5. Is the objection well founded?”

The applicant’s variation to the floor space ratio is based primarily on the general objectives of the zone 3(c) - Business Centre being met and that the development is of an appropriate bulk and scale in relation to its location with a level of amenity with respect to parking, overshadowing, privacy and setbacks can be maintained.

As previously discussed, bulk and scale are better utilised when related to a desired urban character, in this case, the floor space ratio of 2:1 is consistent with the future development of Riverwood Town Centre. Despite the proposed design of the additional floor being setback, which may cater for additional parking with additional overshadowing minimised, to reduce the impacts of the non compliance from severe to moderate, it is still considered this should not qualify for an additional storey, that will still result to an inconsistent scale and character for the Riverwood Town Centre.

Therefore it is considered the SEPP 1 Objection to the floor space ratio within zone 3(c) - Business Centre is not well founded and there is a public benefit in maintaining planning controls. Given the reasons as previously stated, the proposed modification should not be supported.

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

In accordance with this policy, all new residential dwellings and those seeking alterations and additions as identified under this policy require a BASIX certificate that measures the Building Sustainability Index to ensures dwellings are designed to use less potable water and are responsible for fewer greenhouse gas emissions by setting energy and water reduction targets for house and units.

The application is supported by a satisfactory BASIX certificate that satisfies the requirements for dwellings under this policy.

STATE ENVIRONMENTAL PLANNING POLICY NO 55 – REMEDIATION OF LAND

The proposal involves a change of use on land from a service station to a mixed development involving residential use. Council has considered a Preliminary Site Contamination Investigation and is satisfied that the land can be made suitable, after remediation of the site for the intended new use has occurred with the recommendations in accordance with the Environmental Investigations Report No. E1100.1 AB dated 10 November 2009 by Environmental Investigations.

STATE ENVIRONMENTAL PLANNING POLICY NO 65 – DESIGN QUALITY OF RESIDENTIAL FLAT BUILDINGS

The subject planning instrument is applicable due to the four (4) levels of residential units above the commercial use in the proposed development. Further to the design quality principles prescribed, Clause 30(2) of SEPP 65 also requires residential flat development to be designed in accordance with the Department of Planning’s publication entitled Residential Flat Design Code.

Floor Space Ratio

The objective for FSR in Part 1 of the Residential Flat Design Code under local context ensures that the development is in keeping with the optimum capacity of the site and the local area. As previously stated under Council’s Local Environmental Plan, the proposed modification exceeds the maximum 2:1 FSR for the site.

Height

The objective for height in Part 1 of the Residential Flat Design Code under local context is to ensure the proposed development responds to the desired scale and character of the street and local area and to allow reasonable daylight access to all development and the public domain.

Solar access to the public domain is not affected with minimal overshadowing. However, the five (5) storey height does not comply with the desired scale and character of the street and local area for Riverwood Town Centre, which limits buildings to a four (4) storey height limit in Council Development Control Plan No 1 – LGA Wide – Section 6.3 Riverwood 6.3.5 Belmore Road and Mixed Use Development.

Furthermore, SEPP No 65 requires the design quality principles of context, scale and density to be considered in regards to good design appropriate for a site. It is considered that the density of the proposal in relation to floor space ratio, height and scale are excessive to the desired urban context for Riverwood Town Centre.

GREATER METROPOLITAN REGIONAL ENVIRONMENTAL PLAN NO 2 – GEORGES RIVER CATCHMENT

The site is within the area affected by the Greater Metropolitan Regional Environmental Plan No 2 – Georges River Catchment. The proposal, including the disposal of stormwater, is consistent with Council’s requirements for the disposal of stormwater in the catchment.

2. Draft Environmental Planning Instruments

There are no relevant draft environmental planning instruments that specifically apply to this proposal.

Any other matters prescribed by the Regulations

The Regulations prescribe the following matters for consideration for development in the Hurstville Council area:

Safety standards for demolition and compliance with AS 2601 - 2001 apply to the demolition of any buildings affected by the proposal.

3. Development Control Plans

DEVELOPMENT CONTROL PLAN NO 1 – LGA WIDE – SECTION 3.1 CAR PARKING

The proposal is required to comply with the relevant parking requirements of Section 3.1 of Development Control Plan No 1 shown in tabular form below.

Section 3.1 Car Parking	Control	Plan	Complies
Commercial 1 space/50sqm	4 spaces	4 spaces	Yes
Residential 1 space/2br or less 2 spaces/3br or more	6 spaces required for 6 x 2br units 6 spaces required for 3 x 3br units	6 spaces provided 6 spaces provided	Yes Yes
Visitor 1 space per 4 x units	3 spaces required	3 spaces provided	Yes

The proposal complies in full with the car parking requirements under Section 3.1 of Development Control Plan No 1.

DEVELOPMENT CONTROL PLAN NO 1 – LGA WIDE – SECTION 3.3 ACCESS AND MOBILITY

This development guidelines requires one (1) adaptable dwelling for the first eight (8) units and then one (1) for every ten (10) units after that, or part thereof. This equates to a total of two (2) adaptable dwellings to be provided in the development with a total of (2) parking spaces for adaptable use in accordance with AS1428.2. The proposal complies with Section 3.3 of Development Control Plan No 1.

DEVELOPMENT CONTROL PLAN NO 1 – LGA WIDE – SECTION 3.4 CRIME PREVENTION THROUGH ENVIRONMENTAL DESIGN

The proposal is deemed to satisfy the requirements of Development Control Plan No 1 – LGA Wide – Section 3.4 Crime Prevention through Environmental Design (CPTED) by addressing CPTED principles. These are discussed below.

CPTED	Design requirements	Proposal	Complies
Fencing	Front max 1m, unless open type	No fencing is proposed	Yes
Blind corners	- Direct pathways with permeable barriers - Mirrors around corners - Glass/steel panels in stairwells	Blind corners generally avoided, good viewing to and from street.	Yes
Communal/ public areas	- Habitable rooms adjacent to areas - Good visibility to stairwells, entries, elevators	Habitable rooms face on to street. Good views from street to pedestrian entrances and from living areas to the street.	Yes
Entrances	- Max one entry point per 6-8 dwellings - User can see into building before entering - Entrance clearly recognisable	- N/A for mixed use development of this nature. - Clearly recognisable entry point with good views from the street.	Yes
Site and building layout	- Main entrance orientated towards street, and not from rear lanes - Habitable rooms at front of dwelling	- Main entrance from Killara Avenue and clearly visible from the street. - Habitable rooms at front.	Yes Yes
Landscaping	- Low hedges and shrubs or high canopied vegetation. - No continuous barrier of dense growth. - Ground cover or 2m clean trunks around children’s play areas, car parks and pedestrian pathways. - Prickly plants used as barriers. - Avoid vegetation that conceals building entrances. - Large trees next to second storey windows or balconies.	No landscaping proposed.	Yes
Lighting	- Use of diffused and/or movement sensitive lights. - Access/egress routes illuminated. - No glare or dark shadows produced. - No lighting spillage onto neighbouring properties. - Users can identify a face 15 metres away. - Use of energy efficient lamps/fittings/switches.	Can be conditioned to comply	Yes
Building identification	- Each individual dwelling numbered. - Unit numbers provided on each level. - Building entries state unit numbers accessed from that entry.	Can be conditioned to comply	Yes
Security	- Intercom, code or cark locks for building and car park entries. -.Door and window locks comply with AS 220. - Security access to basement parking via main building. - External storage areas well secured and lit.	Can be conditioned to comply	Yes
Maintenance	- Provision for the speedy removal of graffiti and repair/cleaning of damaged property. - Provision of information advising where to go for help and how to report maintenance or vandalism.	Can be conditioned to comply	Yes

As can be seen from the above assessment, the development complies in full, or can be conditioned to comply in full with the requirements of Council’s Development Control Plan No 1 – LGA Wide - Section 3.4 Crime Prevention Through Environmental Design.

DEVELOPMENT CONTROL PLAN NO 1 – LGA WIDE – SECTION 6.3 RIVERWOOD - 6.3.5 BELMORE ROAD AND MIXED USE DEVELOPMENT AND 6.3.7 GENERAL CONTROLS

Section - 6.3 Riverwood	Control	Plan	Complies
Height	4 x storeys Belmore Road frontage permitted but setback for 3 x storeys appearance	5 storeys	No (1)
FSR Overall Non residential	2:1 1:1	2.248:1 0.36:1	No (2) Yes
Rear setback	8m	2.65m	No (3)
Rear lane setback	1m dedicated to Council	1m dedication	Yes
Floor to ceiling heights Commercial Residential	3.6m (max) 2.7m (min) – 3m (max)	3.4m 2.9m (min) to 3.1m (max)	Yes Yes
Balconies	Min. 1 balcony per unit. Min. 8sqm per unit and min. 2m depth. Recessed min. 300mm into wall or enclosed with walls, columns or roofs to provide sufficient enclosure. No glass balconies permitted.	1 balcony per unit. 42sqm for Unit 9 min. depth 1.55m. 61.63sqm for Unit 8 and min. depth 1.52m. Generally enclosed with roof with exception of pergola at north west corner. Predominantly masonry with some glass.	Yes Yes (4) Yes (5) Yes
Landscaping	600mm soil depth over visible basement roof Where direct access to ground level space not available, provide at least one balcony for each dwelling	Not provided, however no elevated basement roof is visible One (1) balcony for each dwelling.	Yes Yes
Lifts	Required for > 2 storeys	Lift provided	Yes
Parking	As per Section 3.1	See table (above)	Yes
Driveways	3m width min	6m (minimum)	Yes
Loading	Wholly within site	7.5m x 3m space provided	Yes
Maximum street frontage per shop	25m	20m (max)	Yes
Shop Front	Glazed frontage only	Glazed frontages	Yes
Use at street level	Retail or commercial	Commercial	Yes
Corners	Relevant architectural form, splays/curves to be provided	Splay corner and curved form utilised	Yes
Elevations	Well proportioned and articulated	Horizontal and vertical elements, shutters and façade articulation appropriate	Yes
Noise Weekdays 7am – 7pm Weekdays 7pm – 10pm Weekends 8am – 7pm Weekends 7pm – 10pm Night 10pm – 7am	55dBA 45dBA 50dBA 45dBA 35dBA	Application may be conditioned to achieve noise attenuation	Yes
Visual Privacy Acoustic Privacy	Main living spaces are to be oriented to the front or rear of a property to avoid overlooking – where this is not possible, windows and balconies are to be offset from neighbour’s windows. First floor balconies located at the rear of residential dwellings must incorporate fin walls or privacy screens to prevent overlooking. Council may require an applicant to provide a Noise Impact Assessment Report by a qualified acoustic engineer where external noise is identified as a likely problem, such as: - adjoining a railway line - fronting arterial or state roads - under the airport flight pat; or - near major industry or noise generating plant or equipment	Main living areas oriented towards Killara Avenue and Belmore Road. Louvres incorporated to minimise overlooking into POS of adjoining western two (2) storey building. Not required	Yes Yes Yes
Solar Access and natural daylight	Subject to lot orientation and privacy considerations, locate main living spaces including lounge, dining, kitchen and family rooms towards the north where possible.	Main living spaces orientated towards north	Yes
Natural Ventilation	Provide windows to all rooms including kitchens and bathrooms, to facilitate natural light and ventilation Facilitate cross ventilation by locating windows opposite each other where possible.	Windows to all rooms including kitchens and bathrooms, to facilitate natural light and ventilation. Cross ventilation provided.	Yes Yes

Non compliances with the proposed modification against the requirements for new developments in Belmore Road under Section 6.3 of Development Control Plan No 1 are discussed below.

(1) Height

The site is located on a prominent corner along Belmore Road. Belmore Road is a regional road that runs north to south, which defines areas to the east and west of the Riverwood suburb. The location of the site at this section of Belmore Road comprises of a commercial/retail strip of the Riverwood Town Centre.

Riverwood in the hierarchy of commercial centres within the Local Government Area ranks as the secondary centre after the regional centre at Hurstville. The consistent scale of narrow fronted buildings, unusually wide footpaths and mix of local services, creates a village character as stated in the Section 6.3. Riverwood 6.3.5 Belmore Road and Mixed Use Development.

Development in the commercial area is limited to a maximum of four (4) storeys and building design requires the fourth storey to be setback to give the appearance of a three (3) storey appearance along Belmore Road and in keeping with the a village character for the Riverwood Town Centre.

Clause 6.6 of the Development Control Plan objectives for Riverwood specify to enure that new development is compatible with the existing street built form and streetscape by:

“(a) Providing direction and certainty of outcome to ensure:

* A consistent street scale

* Compatibility with existing built form

* A variety of building types

* A high level of environmental amenity”

The proposed five (5) storey height despite being setback does not give the appearance of three (3) storey building and will result in inconsistent street scale and will further exacerbate the scale and compatibility with the existing built form consisting of two (2) storey mixed use buildings and single storey dwellings.

(2) Floor Space Ratio

The non compliance of FSR is previously discussed with Council’s Local Environmental Plan. Under the provisions of Council’s Development Control Plan, FSR is reinforced in the Riverwood Town Centre with the maximum FSR permitted being 2:1. The proposed modification exceeds the requirements for FSR under the Development Control Plan.

(3) Rear Setback

The Development Control Plan No 1 requires a rear setback of 8sqm to allow for consistent setbacks. The applicant has stated the setback to the rear lane has been reduced 2.815m due to the length of the site being 27.455m which is shorter in length than other existing allotments of land in the Riverwood Town Centre. The proposed allotment size is considered to be shorter in the length than the existing lots in the Riverwood Town Centre and therefore the 2.815m setback and 1m side footpath dedication to Council is considered to be appropriate.

(4) Balconies - Depth

The Development Control Plan requires balconies to have a minimum area of eight (8) square metres per unit and a minimum of 2 metres in depth. Unit 9 on the proposed fifth storey has balconies with a depth that varies from 4.54 metres to 1.55 metres. Unit 8 on the proposed fifth storey has balconies with a depth that varies from 3.0 metres to 1.52 metres. Given the total area of balconies for each unit, will provide amenity that exceeds the required minimum area of eight (8) square metres and the balconies are setback from the level below, the propose variations to balcony depth are considered to be reasonable.

(5) Balconies - Type

The Development Control Plan requires balconies to be recessed minimum 300mm into wall or enclosed with walls, columns or roofs to provide sufficient enclosure. The balconies for the proposed Unit 9 is partially roofed. It is considered the proposed roof form is inconsistent with the approved balcony forms on the lower residential levels that are either roofed and or incorporated with columns, which retain the streetscape character and architectural appearance of the approved development.

The proposed roof form on the prominent corner is not supported as it is considered to detract from the general architectural appearance of the building and general streetscape character.

4. Impacts

Natural Environment

It is considered unlikely the proposal will significantly impact the natural environment, given the existing setting is a highly built up environment.

Built Environment

The proposed additional fifth storey is unsympathetic to the current built form in Belmore Road predominately comprised of two (2) storey mixed use development. The proposal is also inconsistent with the scale and height for the future desired streetscape character for Riverwood Town Centre envisaged to have a three (3) storey appearance with the fourth storey setback. The proposed modification is an overdevelopment of the site and is considered to be detrimental to the future development of the Riverwood Town Centre.

The proposed site consisting of three (3) lots in five (5) allotments of adjoining land and is located at the end of the Riverwood Town Centre. The proposal is considered to isolate the two (2) of the remaining adjoining lots on this western side of Belmore Road.

Given the remaining two (2) adjoining lots have a combined frontage of approximately 12.9m it is considered the future development potential would be severely reduced as the total frontage of the remaining lots 1 and 2 having 12.9m and would be difficult to provide for a four (4) storey development with basement car parking.

The applicant in this case has not addressed the isolation of the remaining two (2) lots in the blocks with no supporting documentation provided to Council with the development application to indicate any evidence for amalgamation of the adjoining smaller two (2) lots with the current three (3) lots of the site for a proposed mixed use development.

Accordingly the proposal would result undesirable and inconsistent development pattern in the Riverwood Town Centre.

Social Impact

The Development Control Plan for Belmore Road and Mixed Use Development was adopted after extensive community consultation. The proposed non compliance with the maximum four (4) storey height limit as stipulated in the Development Control Plan. The proposal may therefore affect the community’s desired future character for the Riverwood Town Centre and as a consequence lead to a negative social impact.

Economic Impact

The proposed modifications are unlikely to have a negative economic impact.

Suitability of the Site

The site is affected by potentially contaminated land that can be made suitable after remediation of the site.

5. REFERRALS, SUBMISSIONS AND THE PUBLIC INTEREST

Resident

Adjoining residents were notified by letter and given fourteen (14) days in which to view the plans and submit any comments on the proposal. As a result two (2) submissions were received which are summarised below.

Height

The five (5) storeys will be an eye sore and is out of character on a small piece of land with no justification, three (3) storeys would be more suitable and blend with the rest of Belmore Road.

Comment: The five (5) storey height limit is not supported as discussed in the report.

Parking

Parking will be a nightmare for residents and visitors, given a lot of the time there is not enough now.

Comment: The proposed parking satisfies Council requirements for parking.

Overshadowing

The proposal will have an impact on overshadowing on surrounding properties

Comment: The proposal will result in relatively minimal overshadowing.

The development would be noisy and overcrowded

Comment: The proposal is considered to be acceptable in terms of acoustic noise.

Price Lane is narrow and will not be able to cope with the traffic.

Comment: The proposed traffic generation from the development is considered to be acceptable.

Excavation

Excavation close to our property along the entire property may damage the weight bearing walls and foundation of our property.

Comment: The proposal is recommended for refusal, however if Council was of a mind to approve the development geotechnical conditions would be imposed as standard conditions of consent.

Council Referrals

Manager - Development Advice

Comments provided advised of general standard conditions including strata subdivision and the following non standard condition:-

“Stormwater over land flow -

A design which provides for a means to protect the proposed basement from the inundation of stormwaters generated along the rear lane in storm with a 1 in 100 year recurrence interval shall be prepared by an appropriately qualified person. Evidence that this design requirement has been met shall

accompany the application for the Construction Certificate

.”

Senior Environmental Health and Building Surveyor

No objections were raised by the Senior Environmental Health and Building Surveyor subject to recommended conditions of consent, which includes the requirement of a validation report confirming that the site has been remediated in accordance with the conclusions and recommendations of the Environmental Site Assessment Report prepared by Environmental Investigations, Report No. E1100.1 AB, dated 10 November 2009 must be submitted to the Principle Certifying authority prior to commencement of work. Note: A Remedial Action Plan (RAP) prepared by the qualified environmental consultant and in accordance with the New South Wales Protection Authority Guidelines for Consultants Reporting on Contaminated sites must also be prepared prior to the final validation of the site.

Manager – Environmental Services

No objection was raised to the proposal regarding waste management and proposed waste facilities on the site subject to recommended conditions of consent.

External Referrals

Urban Design Review Panel

The design was discussed at the Design Review Panel on 3 December 2009. Below is a summary of the report to Council.

“

1. Context

The site is located in the Riverwood Town Centre within walking distance to Riverwood Station and is surrounded by buildings generally of 1 and 2 storeys comprising older commercial and retail buildings.

2. Scale

Given the rather modest size of the allotment, the proposed Level 4 appears to be unsuccessful in scale and form and diminishes the many other sound qualities of the design. The inclusion of this floor, on the basis of a precedent elsewhere in the Town Centre, does not appear to be a satisfactory reason in the circumstances of this site.

3. Built Form

The proposal comprises a 5 storey building generally constructed to the property boundaries with setbacks on the upper levels and a colonnaded treatment to the commercial frontage on Belmore Road.

The built form establishes a mature response to a town centre development through its first 3 storeys. The setback third floor, with its louvered balconies, forms an appropriate cap which could be improved through a lesser use of masonry in favour of a glass and louvered approach.

Similarly, the uppermost level, with its apparent masonry construction, as viewed from ground level, fails to take advantage of the opportunity presented for a lightweight construction technology more in keeping with the notion of a “penthouse”. This is exacerbated through the use of a mono-pitch roof which increases the wall height to the Belmore Road frontage. It is noted that this floor is proposed on the basis of the previously mentioned precedent. The development would be improved if only extending through ground plus three storeys.

4. Density

The argument for the proposed development to exceed the allowable FSR by 12.5% is again cited as being based on precedent elsewhere in the Town Centre. The Panel is unaware of the exact circumstances of this precedent and would suggest that the development proposal would come closer to compliance if the uppermost level were to be deleted. The application would appear as an overdevelopment of the site.

5. Resource, Energy and Water Efficiency

This is covered by the BASIX Report.

6. Landscape

A landscape plan was not included. Whilst the current opportunities for landscaping are very limited (trees in pots on balconies), planter boxes on the top two floors should also be considered.

The Panel anticipates that the appropriate street trees will be selected in accordance with Council’s street tree master plan.

7. Amenity

The amenity of the proposed units appears to be of a generally good order and gives rise to well laid out and sound apartment designs.

8. Safety and Security

Some attention is needed to ensure safety at the somewhat recessed entranceway to apartments. This could be improved by bringing the door line forward to the linear line of the bin store. This would have the advantage of removing views of parked vehicles from the entranceway.

9. Social Dimensions

Consideration could be given to providing, in lieu of the uppermost floor apartment, access by all apartments to a common roof terrace and barbeque area for the benefit of the residents.

10. Aesthetics

The proposal displays a generally strong architectural resolution in terms of form and materials with the exception of the fourth floor level and the heavy masonry appearance of the third floor level. The Applicant would be advised to consider the first three floors of the building, to be expressed as masonry on the elevations, but that setback floors above, not on the perimeter wall and structure line, to be considered of lighter weight and more transparent materials. It is suggested that the masonary walls generally be set back from the outer line of the concrete slabs. Care needs to be given to the development of the curved corners and their resolution with the masonry walls. At the third floor level, consideration could be given to reflect the curved form on a smaller scale.

Recommendations

It is recommended that the Applicant revise the application with regard to the comments provided in this report and especially to eliminating the top level apartment.”

Comment: The proposal has been amended only with regards to minor changes as discussed in the report and has not removed the additional storey or reduced its floor space ratio. The comments by the Urban Design Review Panel in regards to overdevelopment and unsatisfactory scale and built form are considered to be appropriate and agreed with including heavily relying on an approval of a five (5) storey development on a separate site in the town centre.

Public Interest

The proposal is considered not in the public interest with objection to development standard of floor space ratio not well founded and there is a public benefit in maintaining planning controls for floor space ratio and height.

6. CONCLUSION

It is considered that the proposal is an overdevelopment of this site in respect to non complying floor space ratio and the height imposing a form of the building which is uncharacteristic to the zone 3(c) - Business Centre for Riverwood Town Centre.

Due to these factors the proposal will visually impact on the desired streetscape of Riverwood Town Centre and adjoining properties in the vicinity and is not in the public interest.

The proposed development has relied on the five (5) storey mixed use development approved in the Riverwood Town Centre at 260 Belmore Road. However, as discussed in the report, the current site is quite difference and unique from 260 Belmore Road and the five (5) storey height cannot be supported. The fifth storey if deleted from the proposal would comply with the 2:1 floor space ratio.

For the abovementioned reasons, the proposal is not supported. Following a detailed assessment under the heads of consideration under Section 79C of the Environmental Planning and Assessment Act as amended, it is recommended that the proposal be refused for the reasons as set out below.

RECOMMENDATION

THAT pursuant to Section 80(1)(b) of the Environmental Planning and Assessment Act, 1979, as amended, the Council refuses development consent to Development Application 09/DA-453 for the demolition of existing service station and construction of a new five storey mixed use development with strata subdivision on Lots 3, 4 and 5 DP 1666 and known as 345 Belmore Road, Riverwood for the following reasons:

1. Pursuant to Section 79C(1)(a)(i) of the Environmental Planning and Assessment Act 1979 the proposed floor space ratio exceeds the required 2:1 floor space ratio under Council’s Local Environmental Plan and the objection to the SEPP No 1 is not well founded.

2. Pursuant to Section 79C(1)(a)(i) of the Environmental Planning and Assessment Act 1979 the proposed floor space ratio exceeds the four (4) storey height and 2:1 floor space ratio requirements under Council’s Development Control Plan No 1 – LGA Wide – Section 6.3 Riverwood.

3. Pursuant to Section 79C(1)(b) of the Environmental Planning and Assessment Act 1979 the proposal is seen to be an overdevelopment of the subject site and uncharacteristic in appearance to the desired streetscape of Belmore Road.

4. Pursuant to Section 79C(1)(b) of the Environmental Planning and Assessment Act 1979 the proposal would isolate the two (2) adjoining lots on the five (5) allotments block of land and is considered to severely reduce their development potential.

5. Pursuant to Section 79C(1)(e) of the Environmental Planning and Assessment Act 1979 the proposal is not in the public interest.

* * * * *

DECISION - DAC

THAT the application be approved subject to standard conditions, including appropriate security and contributions in accordance with Council's Contributions Plan.

(Moved Councillor C Hindi / Seconded Councillor C Wong)

APPENDIX

DEVELOPMENT ASSESSMENT COMMITTEE
Wednesday, 7th April 2010

DAC036-10 PK - 19 THURLOW STREET, RIVERWOOD - CONVERSION OF AN EXISTING OUTBUILDING TO A SECONDARY DWELLING

Applicant	Jin Chang Hu
Proposal	Conversion of an existing outbuilding to a secondary dwelling
Zoning	Zone 2 - Residential
Planning instruments applicable	Hurstville Local Environmental Plan 1994, Greater Metropolitan Regional Environmental Plan No 2 - Georges River, State Environmental Planning Policy (Infrastructure) 2007, State Environmental Planning Policy (Affordable Rental Housing) 2009, Development Control Plan No 1 - LGA Wide - Section 3.1 Car Parking, Section 4.3 Outbuildings
Hurstville Local Environmental Plan 1994 interpretation of use	Dual occupancy
Owner/s	Jin Chang Hu
Existing development	Dwelling and outbuilding
Cost of development	$20,000.00
Reason for referral to Council	One objection received
Report author/s	Development Assessment Officer, Ms D Fellows
File No	09/DA-449
Disclosure of political donations or gifts?	No

EXECUTIVE SUMMARY

1. This application seeks consent to convert an existing outbuilding to a secondary dwelling. The development application has been submitted in accordance with the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009.

2. Development consent has previously been issued in respect to the erection of an outbuilding at the rear of the subject property. The existing outbuilding however does not fully correspond with the plans approved for the outbuilding and the matter of unauthorised works has been referred to Council’s Manager – Building Control for investigation.

3. The proposal complies with State Environmental Planning Policy (Affordable Rental Housing) 2009 and meets with the minimum standards under Section 22 of the SEPP which cannot be used as grounds for any refusal of the development.

4. One (1) objection has been received following the neighbour notification.

AUTHOR RECOMMENDATION

THAT the application be approved in accordance with the conditions included in the report.
FURTHER THAT the matter be referred to the Manager – Building Control to take appropriate action under Part 6 of the Environmental Planning and Assessment Act 1979 in accordance with Council’s adopted Enforcement Policy.

REPORT DETAIL

DESCRIPTION OF THE PROPOSAL

The application seeks approval to enclose the verandah on the eastern side of an existing outbuilding situated at the rear of an existing dwelling, and convert the outbuilding to a self-contained detached secondary dwelling.

The proposed granny flat originally has a floor area of 60sqm and is to contain a living room with kitchenette, two (2) bedrooms, two (2) bathrooms and a dining room.

The granny flat is separated a minimum of 4m from the existing house.

BACKGROUND

Council’s records show that Development Application 09/DA-160 for new outbuilding to rear of dwelling was approved on 14 July 2009. This approved outbuilding was for a games room with attached awning.

The consent issued for this outbuilding included the following conditions:

“43. MI31 – The outbuilding/games room is not to be used for human habitation or for any commercial or industrial purpose.

45. MI20 – The outbuilding/games room shall not be adapted or occupied as a separate dwelling.”

The Assessment Officer’s report with this development application recommended that part of the existing dwelling noted in the development application submission as “Existing Fibro Extension” be forwarded to Council’s Building Control section for investigation.

Inspection by Council’s Environmental Health and Building Surveyor on 15 October 2009 showed that the outbuilding under construction was not completely the same as the approved development. In particular, the south west corner which was shown as a verandah on the approved plans has been infilled.

As a Private Certifier was handling the Construction Certificate and inspections in respect to this development, on 22 October 2009 Council’s Environmental Health and Building Surveyor referred the matter of construction works on this property to the Private Certifier.

DESCRIPTION OF THE SITE AND LOCALITY

The subject property is an irregularly shaped allotment with a frontage of 12.19m, and angled rear boundary of 14.3m, and an overall area of 817.4sqm. The site is not affected by any slope. The site is adjoined to the east by Thurlow Street Reserve, with residential units located at the rear of the Reserve, and the site is adjoined to the west by a single dwelling. To the rear is the East Hills rail line and a block of apartments.

This area is characterised by some detached dwellings and apartments blocks, with medium to high density developments.

Inspection of the site showed that part of the building works proposed to convert the outbuilding to a secondary dwelling have commenced. Other proposed building works such as the verandah proposed to the north eastern side of the outbuilding have not commenced.

COMPLIANCE AND ASSESSMENT

The development has been inspected and assessed under the relevant Section 79C(1) "Matters for Consideration" of the Environmental Planning and Assessment Act 1979. The relevant issues raised are discussed below.

1. Environmental Planning Instruments

HURSTVILLE LOCAL ENVIRONMENTAL PLAN

The land is zoned Residential – 2 and the proposal is permissible in the zone with consent. The proposal meets the zone objectives.

Clause 11A – Dual Occupancies

The application has not been assessed in respect to the provisions of this clause as the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 override Council’s Local Environmental Plan.

Clause 14 – Tree preservation orders

No trees are affected by this proposal, and therefore the application is satisfactory in respect to Clause 14 of the Local Environmental Plan.

Clause 15 – Services

Facilities for the supply of water and for the removal and disposal of sewage and drainage are available to this land and stormwater is to be connected to the existing stormwater system and is to drain to the kerb and gutter in Thurlow Street.

Accordingly, the proposal is satisfactory in terms of Clause 15 of the Local Environmental Plan.

Clause 22 – Excavation, filling of land

The proposal does not involve any significant excavation and is unlikely to have any detrimental effect on drainage patterns and soil stability in the locality.

Therefore, in terms of Clause 22, the proposal is considered to be satisfactory.

GREATER METROPOLITAN REGIONAL ENVIRONMENTAL PLAN NO 2 – GEORGES RIVER CATCHMENT

The site is within the area affected by the Greater Metropolitan Regional Environmental Plan No 2 – Georges River Catchment. The proposal, including the disposal of stormwater, is consistent with Council’s requirements for the disposal of stormwater in the catchment.

STATE ENVIRONMENTAL PLANNING POLICY NO 55 – REMEDIATION OF LAND

The subject site is zoned residential and, given the types of uses permissible within the residential zones, it is considered unlikely that the land is contaminated.

STATE ENVIRONMENTAL PLANNING POLICY (INFRASTRUCTURE) 2007

The subject site is adjacent to an existing rail corridor. Referral to the rail authority was not required under Clause 86 of the SEPP as the development does not involve the penetration of ground to a depth of 2m or more below ground level within 25m of the rail corridor.

STATE ENVIRONMENTAL PLANNING POLICY (AFFORDABLE RENTAL HOUSING) 2009

The applicant has lodged a development application seeking consent for the proposed secondary dwelling in accordance with the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009.

Division 2 Secondary Dwellings – Clause 19 Definition

The proposed granny flat is defined as a “secondary dwelling” under the SEPP 2009. “Secondary dwelling” is defined under Clause 19 of SEPP 2009 as follows:

“

secondary dwelling

means a self-contained dwelling that:

(a) is established in conjunction with another dwelling (the

principal dwelling

), and

(b) is on the same lot of land (not being an individual lot in a strata plan or community title scheme) as the principal dwelling, and

(c) is located within, or is attached to, or is separate from, the principal dwelling.”

The proposal conforms with this definition.

Division 2 Secondary Dwellings - Clause 22 – Development may be carried out with consent

The provisions of Clause 22 of SEPP 2009 apply to this development and the proposal has been assessed in respect to the provisions of Clause 22 as follows:

(1) Consent is required to the proposed development pursuant to Clause 22(1) of State Environmental Planning Policy (Affordable Housing) 2009.

(2) The proposed development complies with subclause 22(2) as the proposal will not result in there being any dwelling other than the principal dwelling and the secondary dwelling on this land.

(3)(a) This clause of the SEPP relates to maximum floor space ratio allowed under another environmental planning instrument. Although the Development Control Plan is not an environmental planning instrument, this clause is included for indicative assessment purposes. The total floor area of the principal dwelling and the secondary dwelling is no more than the maximum floor area allowed for a dwelling house under Council’s Development Control Plan No. 1 – LGA Wide. This is because the resultant floor space ratio is 0.247:1 which is less than 0.45:1 as specified under sub-section 4.5.3.3(c) of Development Control Plan No 1. Therefore the proposal complies with this requirement.

(3)(b) The total floor area of the proposed secondary dwelling is no more than 60 square metres which complies with subclause 22(3)(b).

(4) A consent authority is not permitted to refuse consent to development to which Division 2 applies on either of the following grounds:

(a) Site Area: (i) If the secondary dwelling is located within, or is attached to, the principal dwelling, or (ii) if the site area is at least 450 square metres.

As the area of the site exceeds 450 square metres, the proposal cannot be refused because of the area of the site.

(b) Parking: If no additional parking is to be provided on the site, the proposal cannot be refused. Although no additional parking has been provided, the proposal cannot be refused on that basis.

(5) This subclause permits a consent authority to consent to development to which this Division applies whether or not the development complies with the standards as discussed in subclause (4) above.

Division 2 Secondary Dwellings – Clause 24 No Subdivision

Clause 24 does not permit a consent authority to consent to a development application that would result in any subdivision of a lot on which development has been carried out under this Division.

The application is not seeking consent for subdivision and a condition is included in the recommendation stating that subdivision of the lot on which this development is to be carried out is not permitted.

2. Draft Environmental Planning Instruments

There are no draft Environmental Planning Instruments which are applicable.

Any other matters prescribed by the Regulations

The Regulations prescribe the following matters for consideration for development in the Hurstville Council area:

Safety standards for demolition and compliance with AS 2601 - 2001 apply to the demolition of any buildings affected by the proposal.

3. Development Control Plans

DEVELOPMENT CONTROL PLAN NO 1 – LGA WIDE – SECTION 3.1 CAR PARKING

The proposal does not provide any additional car parking for the secondary dwelling.

Sub-clause (4)(b) of Division 2 of the SEPP states that a consent authority must not refuse consent to development to which that Division applies on the grounds of parking if no additional parking is to be provided on the site. Therefore, the proposal cannot be refused because of parking not meeting the Development Control Plan requirement.

In this regard, it is also noted that the Development Control Plan has no specific parking requirement for “secondary dwellings”.

DEVELOPMENT CONTROL PLAN NO 1 – LGA WIDE - SECTION 3.5 ENERGY EFFICIENCY

The proposal has achieved a BASIX Certificate and is considered to be satisfactory in respect to Section 3.5 of the Development Control Plan.

DEVELOPMENT CONTROL PLAN NO 1 – LGA WIDE - SECTION 4.3 OUTBUILDINGS

Council currently has no specific development controls relating to secondary dwellings. The controls for outbuildings have been used as a comparative assessment.

Outbuildings	Standard	Proposal	Complies
Area of outbuildings	Area of outbuildings not to exceed 80sqm, if more than 55sqm justification for size needs to be submitted	Area of outbuilding is 60sqm. Justification has been provided in that SEPP (Affordable Rental Housing) 2009 overrides controls within Council’s DCP	Yes
Maximum recommended height	3 metres from ceiling or top plate height to natural ground level	3.6m max.	No (1)
Stormwater	Guttering and down piping to be provided	Guttering and downpiping has been shown	Yes
Material	External finishes and cladding used is to be of low reflectivity	A condition requiring materials of low reflectivity is in the recommendation	Yes (By condition)
Outbuilding design	Outbuildings to be unobtrusive and complement surrounds to maintain water views and minimise visual impact.	Proposed granny flat is at the rear of the existing house and is single storey. Although the roof of the outbuilding will be visible from Thurlow Reserve, the proposal complies with the height requirements under the SEPP. There is dense vegetation at the rear of the property which separates the rear of the site from the adjacent rail corridor.	Yes
Section 6.5.4.2 Detached Structures (Construction requirements)	These structures must be designed to comply with Specification C1.9 of the BCA	The proposed granny flat has been examined for BCA compliance by Council’s Senior Environmental Health and Building Surveyor	Yes

(1) Maximum Recommended Height

The height of the outbuilding exceeds the recommended maximum of 3m however this height has been previously approved and this proposal does not alter the approved height.

4. Impacts

Natural Environment

The proposal is satisfactory in respect to the natural environment, as no trees are to be removed and as landscaped areas will be retained on site.

Built Environment

The building is not readily visible from Thurlow Street due to its siting behind the existing dwelling. Being single storey in height, the granny flat is not overtly obtrusive, and is setback a minimum of 23.2m from the rear rail corridor.

The building will not have any adverse impact on privacy as the building is only single storey and the bedroom windows on the eastern side of the building face Thurlow Reserve and will be screened by the existing fencing. The windows on the western side of the outbuilding are to utility rooms and do not present privacy concerns.

The southern side of the dwelling faces the existing house and is 4m away from this house, and the rear of the granny flat including the proposed verandah is 23.2m from the rail corridor at the rear. Accordingly, the proposal is not considered to present any issues in respect to privacy.

In regard to acoustic privacy, only a small verandah is proposed at the rear and is not considered large enough to facilitate outdoor entertaining. Therefore, no adverse acoustic impact is envisaged.

The single storey outbuilding does not cause any substantive loss of sunlight to the private open space of adjoining properties, and the bulk of shadow cast falls over the site at the rear of the secondary dwelling.

In terms of the built environment, the proposal is considered to be satisfactory.

Social Impact

The proposal is for residential purposes only, and no detrimental social impact is foreseen.

Economic Impact

The proposal is for residential purposes, and no adverse economic impact is envisaged.

Suitability of the Site

The site is considered to be suitable for the form of development proposed as the land is not affected by any known environmental risk factors, and the property meets the dimensional requirements for secondary development.

Unauthorised Works

Part of the building works proposed in association with converting the outbuilding to a secondary dwelling have commenced (being the kitchenette on the south west corner of the outbuilding which was shown as a verandah on the approved plans for the outbuilding), and other proposed work such as the installation of a verandah to the north east side of the building has not yet commenced.

It is therefore recommended that the matter be referred to the Manager – Building Control to take appropriate action under Part 6 of the Environmental Planning and Assessment Act 1979 in accordance with Council’s adopted Enforcement Policy.

5. REFERRALS, SUBMISSIONS AND THE PUBLIC INTEREST

Resident

Adjoining residents were notified by letter and given fourteen (14) days in which to view the plans and submit any comments on the proposal. In response, one (1) objection has been received. The issues raised are discussed below as follows.

Increase in noise

There has already been an increase in noise since new occupants moved into the house on this property. The addition of another residence will increase the noise level.

It is asked that the occupants abide by the By-Laws and keep the noise level down after 8.00pm at night so that all neighbours can have peace and quiet.

Comment: The dwelling is permissible under SEPP (Affordable Housing) 2009 and has been well setback (a minimum of 23.2m) from the rail corridor at the rear.

Conditions have been included in the recommendation requiring noise levels emitted not to interfere with the surrounding amenity. Should the use be carried out in breach of these conditions, then a complaint can be registered to Council’s Compliance section for investigation.

Council Referrals

Manager - Development Advice

The application was referred to Council’s Manager – Development Advice who has raised no objection to the proposal subject to a condition which has been included in the recommendation.

Senior Environmental Health and Building Surveyor

Council’s Senior Environmental Health and Building Surveyor has raised no objection to the proposal subject to conditions.

6. CONCLUSION

The subject development application has been submitted under the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 and the development complies with the applicable development standards within this SEPP. For the reasons outlined in this report the proposal is considered acceptable.

Part of the building works has already commenced, therefore it is recommended that this matter be referred to Council’s Manager – Building Control for appropriate action. Approval can still be granted retrospectively for the use but no approval is expressed or implied in regard to the unauthorised building works which have been undertaken.

RECOMMENDATION

THAT pursuant to Section 80(1)(a) of the Environmental Planning and Assessment Act, 1979, as amended, the Council, grants development consent to Development Application 09/DA-449 for conversion of an existing outbuilding to a secondary dwelling on Lot 26 DP 35640 and known as 19 Thurlow Street, Riverwood, subject to the attached conditions:

1. Standard condition as imposed by Council for Outbuildings. Excluding the following conditions: OC8; B12; ST1 (g); DR1 (b)–(f); 22 RTA; DR5; RR1; ES1; DD2 (e); 38 The carport must be constructed…; MI32; MI34; MI21; RR8; 46 RTA; MI1; MI27; MI20; MI22. Including the following conditions:

2. Approved Plans

Plan No. Plan Date Description Prepared By
E20-01 Received 20 Nov 09 Site Plan (Site Analysis) Archplan
E20-02 Received 20 Nov 09 Floor Plan and Section A Archplan
E20-03 Received 20 Nov 09 Elevations Archplan
E20-04 9 Nov 09 Site Coverage Plan Archplan
E20-05 9 Nov 09 Stormwater Plan/Sediment Control Plan/Sediment Fence Detail Archplan
3. Subdivision of the lot on which this development is to be carried out is not permitted.

Include under “To Obtain a Construction Certificate”

4. Stormwater System - All roof water from the proposed granny flat structure must be collected and discharged to the existing drainage system.

The design of the proposed drainage system must be submitted for approval

with the Construction Certificate application

5. The noise level of the air conditioning unit will not exceed 5dBA above the ambient background noise level measured at the nearest residential property boundary between the hours of 7.00am to 10.00pm Monday to Friday, 10.00pm to 7.00am Monday to Friday, 8.00am to 10.00pm and 10.00pm to 8.00am weekends and public holidays and public holidays. The air conditioning unit if operated outside these hours must not exceed the background ambient noise level.

6. The operation of the air conditioning unit is to comply with the Public Health Act 1991, Protection of the Environment Operations Act 1997, AS 3666 and AS1668 as applicable.

Include under “During the Development”

7. MI31 – The secondary dwelling is not to be used for any commercial or industrial purpose.

8. MI4 – The side and rear boundaries of the site must be fenced with either 1800mm high lapped, capped and stained paling fences or 1800mm colourbond metal fencing. The type of fencing is to be by agreement with the adjoining property owners.

9. MI6 – A minimum of 7.5 metres of clothes line is to be provided for the secondary dwelling.

Include under “Before Occupation”

10. BA1 – Certificate No. A70830 dated 8 November 2009.

11. SU156 – No. 19 for the front (southern) dwelling and No. 19A for the rear (northern) dwelling.

Include under “After Occupation/Ongoing Conditions”

12. PN6 – The maximum noise level

Include under ‘Advices to Applicant’

13. Should the Council be appointed as the Principal Certifying Authority, the Construction Certificate application must be accompanied by the following details, with plans prepared and certified by an appropriately qualified person demonstrating compliance with the Building Code of Australia:

* Site Treatment for Termite Risk Management – Part 3.1.3.

* Location and installation of Smoke Alarms – Part 3.7.2.

* Treatment process of Wet Areas – Part 3.8.1.

* Construction of Sanitary Facilities – Part 3.8.3.

FURTHER THAT the matter be referred to the Manager – Building Control to take appropriate action under Part 6 of the Environmental Planning and Assessment Act 1979 in accordance with Council’s adopted Enforcement Policy.

* * * * *

DECISION - DAC

THAT the application be approved in accordance with the conditions included in the report.
FURTHER THAT the matter be referred to the Manager – Building Control to take appropriate action under Part 6 of the Environmental Planning and Assessment Act 1979 in accordance with Council’s adopted Enforcement Policy.

(Moved Councillor C Hindi / Seconded Councillor W Pickering)

APPENDIX

DEVELOPMENT ASSESSMENT COMMITTEE
Wednesday, 7th April 2010

DAC037-10 PK - 85 LUGARNO PARADE, LUGARNO - EXTENSION OF THE FIRST FLOOR DECK INCLUDING A NEW AWNING AND NEW STAIRCASE TO EXISTING DWELLING

Applicant	JMH Living Design
Proposal	Extension of the first floor deck including a new awning and new staircase to existing dwelling
Zoning	Zone 2 - Residential
Planning instruments applicable	Hurstville Local Environmental Plan 1994, Greater Metropolitan Regional Environmental Plan No 2 - Georges River Catchment, Development Control Plan No 1 - LGA Wide - Section 4.5 Single Dwelling Houses
Hurstville Local Environmental Plan 1994 interpretation of use	Dwelling house
Owner/s	Mr D and Mrs M Clarke
Existing development	Single dwelling house
Cost of development	$35,000.00
Reason for referral to Council	Existing non compliance with DCP 1
Report author/s	Development Assessment Officer, Mr R Guirguis
File No	09/DA-467
Disclosure of political donations or gifts?	No

EXECUTIVE SUMMARY

1. The application seeks approval to extend the existing deck to the rear, add a new awning above the deck and some internal alterations to the kitchen area.

2. The site is located in the Foreshore Scenic Protection Area, Development area A and is bushfire prone.

3. The proposal satisfies the provisions of Hurstville Local Environmental Plan 1994, and Development Control Plan No 1 with exception to a minor variation to the landscaping requirement.

4. There were no submissions received in relation to the proposed development.

AUTHOR RECOMMENDATION

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

REPORT DETAIL

DESCRIPTION OF THE PROPOSAL

The application seeks approval to extend the existing deck to the rear, add a new awning above the deck and some internal alterations to the kitchen area.

The existing development consists of a rendered two (2) storey dwelling house with a detached outbuilding to the front and a swimming pool to the rear of the property.

The proposed work will involve the partial demolition of the rear wall presently serving the existing kitchen area, located on the first floor level with direct access unto the existing north facing deck to the rear.

The existing kitchen area will be renovated and extended by approximately 4sqm to the rear and the existing first floor deck will be also extended by approximately 6.12sqm to the rear. Similarly, the existing awning, balustrades and the existing spiral staircase will all be replaced with new adjustable louvre privacy screen to be installed along the eastern elevation of the deck.

The ground floor area beneath the deck is currently engaged by a garden bed which will remain unaltered as the deck will remain at 2.7m above ground and the extent of the rear extension is considered minimal at 1.17m to the rear by 5.2m across the width of the deck.

The new awning will have a height of approximately 6.4m and the existing tiled roof of the dwelling will remain unaltered.

DESCRIPTION OF THE SITE AND LOCALITY

The site is an irregular shaped site with a frontage of 23.66m to Lugarno Parade and an area of 679.31sqm. The site is located on the northern side of the street. Existing on the site is a two (2) storey single dwelling house with a detached outbuilding to the front and a swimming pool to the rear of the property.

Adjoining the site to the east, west and north (rear) are single dwelling homes. The area is generally low density residential in character.

The site is located in the Foreshore Scenic Protection Area, Development area A and is bushfire prone.

COMPLIANCE AND ASSESSMENT

The development has been inspected and assessed under the relevant Section 79C(1) and Section 79BA "Matters for Consideration" of the Environmental Planning and Assessment Act 1979.

“

Section 79BA Consultation and development consent-certain bush fire prone land

(1) Development consent cannot be granted for the carrying out of development for any purpose (other than a subdivision of land that could lawfully be used for residential or rural residential purposes or development for a special fire protection purpose) on bush fire prone land unless the consent authority:

(a) is satisfied that the development conforms to the specifications and requirements of Planning for Bushfire Protection , ISBN 0 9585987 8 9, produced by the NSW Rural Fire Service (or, if another document is prescribed by the regulations for the purposes of this paragraph, that document), that are relevant to the development,”

The proposed development has been assessed under Section 79BA and was accordingly referred to the New South Wales Rural Fire Service and no objections were raised subject to compliance with the principles of appendix 5 of Planning for Bushfire Protection 2006 at which is considered to be achievable.

1. Environmental Planning Instruments

HURSTVILLE LOCAL ENVIRONMENTAL PLAN

The land is zoned 2 – Residential and the proposed use is permissible within the zone. The proposal meets the zone objectives.

Clause 15 - Services

The site is adequately serviced by the relevant utility services necessary to support residential development. The proposed dwelling can be accommodated over the existing infrastructure. Storm water is to discharge to the existing sump system at the rear.

Clause 19B – Foreshore Scenic Protection Area

Council cannot grant consent to the carrying out of development on land within a Foreshore Scenic Protection Area unless consideration has been made of the following.

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

Comment: In respect to sub-clause 4(a), the subject site is not directly adjacent to a foreshore area and the proposed development will not be seen 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: In respect to sub-clause 4(b), the proposal complies with Council’s height requirements. The proposal is considered not to have any potential to impact on views from adjoining properties and as previously mentioned the proposal will not be seen from the waterways.

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

Comment: In regard to sub-clause 4(c), the proposal is not considered to have any adverse impact on the natural topography, canopy vegetation, or any other significant vegetation. The proposed works will occur at the first floor level and the garden bed located underneath the proposed deck will remain unaltered.

“(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: In respect to sub-clause 4(d), the materials to be used for the building works are acceptable within this area and the design of the proposal will retain the existing landscaped open space on the site.

Accordingly, the proposal is seen to comply with Clause 19B.

GREATER METROPOLITAN REGIONAL ENVIRONMENTAL PLAN NO 2 – GEORGES RIVER CATCHMENT

The site is within the area affected by the Greater Metropolitan Regional Environmental Plan No 2 – Georges River Catchment. The proposal, including the disposal of stormwater, is consistent with Council’s requirements for the disposal of stormwater in the catchment.

STATE ENVIRONMENTAL PLANNING POLICY NO 55 – REMEDIATION OF LAND

The subject site is zoned residential and, given the types of uses permissible within the residential zones, it is considered unlikely that the land is contaminated.

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

2. Draft Environmental Planning Instruments

There are no Draft Environmental Planning Instruments relevant to the proposed development.

Any other matters prescribed by the Regulations

The Regulations prescribe the following matters for consideration for development in the Hurstville Council area:

Safety standards for demolition and compliance with AS 2601 - 2001 apply to the demolition of any buildings affected by the proposal.

3. Development Control Plans

DEVELOPMENT CONTROL PLAN NO 1 – LGA WIDE – SECTION 4.5 SINGLE DWELLING HOUSE

Section 4.5 - Single Dwelling House	Standard	Proposal	Complies
Front Setback	Garages, carports must be behind the front boundary setback or a minimum of 4.5m, whichever is greater	The existing garage is forward of the building line and accommodated two vehicles	N/A
Car parking and Access	Driveways, access lanes and car parking spaces must not occupy more than 40% of the frontage where it is 20m or less	30% as per the existing conditions which will remain unaltered	N/A
Side Setback	900mm	1.72m east side setback	Yes
Clause 4.5.3.4 Requirements Building Envelope	- Must fit within building envelope - For allotments with frontages in excess of 15.5m	The existing dwelling including the proposed works fit within the envelope	Yes
Height	External wall height 7.2m Height to the ridge 9m	5m 6.5m to top of awning	Yes Yes
Solar Design/Energy Efficiency	Private open space of adjoining buildings to receive minimum 4hrs sunlight between 9am – 3pm on 22 June Solar access to be preserved	All adjoining private and open space will receive the minimum required sunlight	Yes
Landscaped Area Min 55% of site Min. 80% Soft Max.20% Impervious Min 30% Deep Soil	373.6sqm (55%) 298.8sqm (80%) 74.7sqm (20%) 112.08sqm (30%)	418.33sqm (62%) 200.33sqm (48%) 218sqm (52%) 114.08sqm (27%)	Yes No (1) No (2) Yes

(1) and (2) – Landscaped Area – Soft and Impervious

As existing the amount of deep soil and the impervious areas of landscaping do not comply.

Hurstville’s Local Environmental Plan 1994 defines a landscaped area and requires it not to be occupied by a “building”. The proposal in its current form further reduces the soft landscaping by 6.12sqm by definition only as the area underneath the proposed deck will remain unaltered as a garden bed.

This variation is considered negligible especially when considering that the site offers an additional 44.7sqm of overall landscaped area.

Further, the proposal is considered to have satisfied the objective of this control in terms of allowing natural water infiltration into the ground as the proposed deck is located at the first floor level and is 2.7m above the existing garden bed underneath.

In this regards, the variation is considered negligible and is therefore supported.

4. Impacts

Natural Environment

There will be minimal impact on the natural environment as a result of the proposed development. The proposal will require the removal of two (2) palm trees of low significance located in the garden bed below which will be replaced by low shrubs. Roof surface water collected from the existing dwelling and awning will remain unaltered and discharged into the existing system.

Built Environment

Streetscape

The proposal will not be seen from the street and the existing streetscape will remain unaltered.

Design

The proposed design is considered to be a much more practical and more desirable design than the existing condition in terms of providing a slightly bigger kitchen area as well as allowing more solar access to penetrate into the dwelling adding foldable doors leading unto the deck facing north.

Overshadowing

All adjoining properties will continue to receive more than the minimum required sunlight. The majority of the shadows created by the new awning will be directed unto the dwelling itself.

Privacy

The proposed deck is well setback by over 10 meters from the west and provides a louvered privacy screen from the east which is considered to be an improvement to the existing conditions as well as adequate measures to preserve the privacy of the adjoining neighbours to the east.

Heritage

The subject property is not a heritage listed item or located within the vicinity of heritage listed item.

Social Impact

The proposal has no adverse social impact.

Economic Impact

The proposal has no adverse economic impact.

Suitability of the Site

The site is considered suitable in terms of its size, shape and topography. The site is considered to be bushfire prone however, the proposed alterations and additions is considered acceptable subject to compliance with the principles of appendix 5 of Planning for Bushfire Protection 2006. The site is not affected by acid sulphate soils, overland flow nor believed to be contaminated.

5. REFERRALS, SUBMISSIONS AND THE PUBLIC INTEREST

Resident

Adjoining residents were notified by letter and given fourteen (14) days in which to view the plans and submit any comments on the proposal. There were no submissions received in relation to the proposed development

Council Referrals

There were no internal referrals necessary for this application.

External Referrals

NSW Rural Fire Service

No objections were raised subject to standard conditions.

6. CONCLUSION

The proposal satisfies the provisions of Hurstville Local Environmental Plan 1994; and Development Control Plan No 1 with exception to a variation to the landscaping requirement. At present, the existing available soft landscaped area vs. the impervious area does not comply.

This proposal increases this variation by 6.12sqm and is considered negligible especially when considering that the site offers an additional 44.7sqm of overall landscaped area.

There were no submissions received in relation to the proposed development.

The proposed design is considered to offer a better design in terms of privacy and solar access.

As such, the proposal in its current form is considered reasonable and an improvement to the existing conditions

RECOMMENDATION

THAT pursuant to Section 80(1)(a) of the Environmental Planning and Assessment Act, 1979, as amended, the Council, grants development consent to Development Application 09/DA-467 for the extension of the first floor level deck including a new awning and new staircase on Lot 12 DP 238930 and known as 85 Lugarno parade Lugarno, subject to the attached conditions:

1. Standard conditions as approved by Council for single dwelling. Excluding the following conditions: ST1 (g)-(h); 20 Geotechnical report; PN11; DR1 (b)-(f); 29 RTA; DR5; RR1; RR2; 33 and 34 Air conditioners; BC3; DD2 (e); MI21; RR8; 52 RTA; MI1; TPZ1; TPZ2; BA1; MI27; PN6. Including the following conditions:

2. Approved Plans

Plans
Date
Description
Drawn By
Sheet No. 08 19 Feb 10 Revised Site plan JMH Living Design
Sheet No. 02 2 Nov 09 Lower and Upper Floor Plans JMH Living Design
Sheet No. 03 19 Feb 10 Elevations JMH Living Design
Sheet No. 03 2 Nov 09 Sections JMH Living Design
Include under “To obtain a Construction Certificate”

3. OC8 to read:

a) At the commencement of building works and in perpetuity the entire property shall be managed as an inner protection area (IPA) as outlined within Section 4.1.3 and Appendix 5 of 'Planning for Bushfire Protection 2006' and the NSW Rural Fire Service's document 'Standards for asset protection zones'.

The intent of measures is to provide sufficient space and maintain reduced fuel loads so as to ensure radiant heat levels of buildings are below critical limits and to prevent direct flame contact with a building.

b) Water, electricity and gas are to comply with section 4.1.3 of 'Planning for Bushfire Protection 2006'.

The intent of measures is to provide adequate services of water for the protection of buildings during and after the passage of a bush fire, and to locate gas and electricity so as not to contribute to the risk of fire to a building.

c) New construction shall comply with Australian Standard AS3959-1999 'Construction of buildings in bushfire prone areas' Level 3.

d) Roofing shall be gutterless or guttering and valleys are to be screened to prevent the build up of flammable material. Any materials used shall have a Flammability Index of no greater than 5 when tested in accordance with Australian Standard AS1530.2-1993 'Methods for Fire Tests on Building Materials, Components and Structures - Test for Flammability of Materials'.

e) The existing building is required to be upgraded to improve ember protection.

f) This is to be achieved by enclosing all openings (excluding roof tile spaces) or covering openings with a non-corrosive metal screen. Where applicable, this includes any sub floor areas, openable windows, doors, vents, weepholes and eaves. The intent of measures is that buildings are designed and constructed to withstand the potential impacts of bush fire attack.

g) Landscaping to the site is to comply with the principles of Appendix 5 of 'Planning for Bush Fire Protection 2006'.

Include under “After Occupation/Ongoing Conditions”

4. Access - To aid in fire fighting activities, unobstructed pedestrian access to the rear of the property shall be provided and is to be maintained at all times.

The intent of measures for internal roads is to provide safe operational access for emergency services personnel in suppressing a bush fire, while residents are accessing or egressing an area.

* * * * *

DECISION - DAC

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

(Moved Councillor C Hindi / Seconded Councillor A Wagstaff)

APPENDIX

DEVELOPMENT ASSESSMENT COMMITTEE
Wednesday, 7th April 2010

DAC038-10 PK - 3 MARINE DRIVE, OATLEY - SECTION 96 MODIFICATION TO REMEDY UNAUTHORISED WORKS FROM ORIGINALLY APPROVED ALTERATIONS AND ADDITIONS

Applicant	Arthur Vasilaris
Proposal	Section 96 modification to remedy unauthorised works from originally approved alterations and additions
Zoning	Zone 2 - Residential
Planning instruments applicable	Hurstville Local Environmental Plan 1994, Development Control Plan No 1 - LGA Wide - Section 4.5 Single Dwelling Houses
Hurstville Local Environmental Plan 1994 interpretation of use	Dwelling house
Owner/s	Arthur Vasilaris and Olga Lagos
Existing development	Multiple storey dwelling
Cost of development	N/A
Reason for referral to Council	Two objections received
Report author/s	Development Assessment Officer, Mr I Kokotovic
File No	2006/DA-56REV2
Disclosure of political donations or gifts?	No

EXECUTIVE SUMMARY

1. In 2006 Council granted development consent for alterations and additions to a dwelling.

2. This Section 96 Modification application seeks to remedy unauthorised development constructed and added to the building works completed without consent include retaining wall, air conditioning and balcony extension.

3. The modifications are compatible with the existing approved and built form, but conditions are recommended to reduce their additional impact on the adjoining premises.

4. The proposal complies with all the numerical controls of Council’s relevant Development Controls Plan.

5. Two (2) objections to this proposal have been received.

AUTHOR RECOMMENDATION

THAT the application be approved in accordance with the conditions included in the report.
FURTHER THAT the matter be referred to the Manager – Building Control to take appropriate action under Part 6 of the Environmental Planning and Assessment Act 1979 in accordance with Council’s adopted Enforcement Policy.

REPORT DETAIL

DESCRIPTION OF THE PROPOSAL

The Section 96 Modification application seeks to remedy unauthorised development constructed and added to the building beyond the conditions of the original consent. The application consists of:-

* A 10m in length sleeper/timber retaining wall (to replace a rock retaining wall) adjacent to the rear eastern boundary at a height of approximately 2.1m above the neighbouring eastern premises backyard ground level. The retaining wall extends the accessible backyard area of the subject premises by approximately 10sqm.

Effectively, the new retaining wall, constructed 1m closer to the boundary than the previous rock retaining wall, has made the backyard of the subject premises larger, and safer to use. A see-though swimming pool design fence to a height of approximately 1.2m has been erected along the entire backyard boundary, dividing the backyards of 3 Marine Drive and 1 Marine Drive.

* The installation of a large ducted air conditioning unit in the side path of the eastern side of the dwelling. The air conditioning unit sits approximately 300mm from the boundary fence, and within the same building corridor as two (2) opposite air conditioners attached to the side of the dwelling at 1 Marine Drive. There was no specific approval of any air conditioner in the original consent, nor any specific conditions in the consent restricting the installation of an air conditioner.

* The extension of the balcony by 25sqm and its balustrading from the top floor master bedroom at the front of the dwelling towards the eastern boundary. The tiled balcony has been constructed in the location of the approved sloping roof of the ceiling to the floor underneath.

The applicant has stated that the reason for the extension of the balcony and balustrading is to allow for a safer access to the top roof for the cleaning of leaves and maintenance of the roof.

The originally approved balustrading has remained, effectively dividing the balcony into two (2) separate parts, with the extended area divided from the originally approved.

BACKGROUND

17 Feb 06 Original Development Application lodged with Council.

7 Aug 06 Development Consent issued.

28 Mar 08 Section 96 Modification application (Rev01) lodged with Council seeking to remedy unauthorised modifications to western elevation windows and door.

10 Jun 08 Section 96 Modification (Rev01) consent issued.

17 Dec 09 Section 96 Modification application (Rev02) lodged with Council, seeking to remedy unauthorised development, constructed and added to the building beyond the conditions of the original consent.

DESCRIPTION OF THE SITE AND LOCALITY

The subject property is located on the south side of Marine Drive and is north facing.

The site is adjacent to two (2) storey dwellings to the east and west. The properties are affected by a steep slope from the south west to the north east.

Existing on site is a multiple storey dwelling with a basement garage.

This area is characterised by a mix of single/two (2) storey dwellings with low density developments.

COMPLIANCE AND ASSESSMENT

The development has been inspected and assessed under the relevant Section 79C(1) "Matters for Consideration" of the Environmental Planning and Assessment Act 1979.

1. Environmental Planning Instruments

SECTION 96 OF ENVIRONMENTAL PLANNING AND ASSESSMENT ACT

The proposal has been assessed in relation to the following clauses under Section 96 of the Environmental Planning and Assessment Act 1979 (as amended):

“

96 Modification of consents—generally

(1A) Modifications involving minimal environmental impact

(a) it is satisfied that the proposed modification is of minimal environmental impact, and”

Comment:

The proposed alterations to the originally approved development are considered to be of minimal environmental impact.

i) The extension of the rear retaining wall, with conditions relating to privacy, will result in a development with minimal environmental impact.

ii) The installation of the air conditioning unit, with the imposition of conditions relating to noise emission guidelines, will result in a development with minimal changes resulting in minimal environmental impact.

iii) The extension of the balcony and balustrading, with conditions recommended to ensure privacy, will result in a development with minimal changes resulting in minimal environmental impact.

Comment:

The proposal constitutes substantially the same development as that which was originally approved by Council.

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

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

Comment:

The proposal has been notified in accordance with Council’s Development Control Plan No 1 – LGA Wide.

Comment:

Two (2) neighbour submissions were received in relation to this application, and are commented on further in the report.

HURSTVILLE LOCAL ENVIRONMENTAL PLAN

The land is zoned 2 – Residential and is a permissible use in the zone. The proposal meets the zone objectives.

Clause 14 – Tree Preservation Orders

No trees affected by this order are impacted on by this proposal.

Clause 15 – Services

This clause is not affected by any consequence of the proposal, as the roofed area from which stormwater is directed is only increased a further 4.4sqm. The original consent condition is sufficient.

Clause 19B – Foreshore Scenic Protection Area requirements

The assessment is satisfied by the proposal, specifically that:

a) the development cannot be seen from any waterway.

b) there are no blocking of views from adjoining properties and public places to waterways and adjacent foreshore areas.

c) there is considered no effect on natural topography or any vegetation.

d) the design of the development does not impact on the character of the locality or the landscaped open space.

GREATER METROPOLITAN REGIONAL ENVIRONMENTAL PLAN NO 2 - GEORGES RIVER CATCHMENT

The site is within the area affected by the Greater Metropolitan Regional Environmental Plan No 2 – Georges River Catchment. The proposal does not affect Council’s requirements for the disposal of stormwater in the catchment.

STATE ENVIRONMENTAL PLANNING POLICY NO 55 - REMEDIATION OF LAND

The subject site is zoned residential and, given the types of uses permissible within the residential zones, it is considered unlikely that the land is contaminated.

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

2. Draft Environmental Planning Instruments

No Draft Environmental Planning Instruments affect the site.

Any other matters prescribed by the Regulations

No additional matters prescribed by the Regulation require consideration as a result of the current application.

3. Development Control Plans

The proposal has been assessed against Council’s relevant Development Control Plan and below is a summary of the compliances.

DEVELOPMENT CONTROL PLAN NO 1 – LGA WIDE – SECTION 4.5 SINGLE DWELLING CONTROLS

Single Dwelling Houses	Standard	Proposed	Complies
Site Area		613.4sqm
Front Setback	4.5m	9m	Yes
Height Maximum	9m	8.85m	Yes
FSR (0.45:1)	FSR (0.45:1)	FSR 0.45:1	Yes
Landscaped Open Space	Min 55% soft (337.37m) Min 30% deep soil (119.1sqm) Max 20% impervious (79.4sqm)	64.72% (397sqm) 88.83% (272sqm) 11.17% (125sqm)	Yes
Parking Spaces Required	Min 2	2 behind building line	Yes
Privacy	Windows 9m separation or offset by 1m	Complies - privacy screen and planters to be conditioned	Yes
Solar Design/Energy Efficiency North South aligned blocks	Private open space of adjoining buildings to receive minimum 4hrs sunlight between 9am - 3pm on 22 June Solar access to be preserved	No issues for private open space of adjoining dwellings Solar access is preserved	Yes

As can be seen from the table above, the proposal complies with the requirements of Section 4.5.

4. Impacts

Natural Environment

It is considered the proposal will not have any adverse impact on the natural environment. No trees are affected by this proposal, and it is substantially the same as previously approved.

Built Environment

The proposed development fully complies, but conditions are recommended to reduce additional impact arising from ongoing use of the site. The proposal provides a consistent design solution with the existing approved development by not impacting on adjacent premises beyond what is considered reasonable or conditionable. The air conditioner and extended balcony do not create an additional bulk to the design of the dwelling.

Retaining Wall

The new retaining wall provides a more rational and safer solution to the backyard by allowing access of a consistent levelled turf area. The swimming pool design fence at 1.2m high on the retaining wall, does not create an overbearing aesthetic to the eastern neighbours, and seeks to retain the on-site conditions of the previous mesh boundary fence. The retaining wall is not an overdevelopment but its construction effectively establishes use of the rear yard immediately adjacent to the boundary, as a finished ground level much higher than that of the property to the east.

It is this aspect of the development, in conjunction with there being a see-through fence, which increases the impact by way of compromising privacy. The impact is exacerbated given the affected rear yard at 1 Marine Drive has a swimming pool which can be viewed from the subject premises rear yard through the existing pool type fence. It is seen as prudent given the increased privacy impact to a swimming pool area, that a fixed fabric privacy screen is conditioned to be attached to and maintained on the fence, along the 10m length new retaining wall.

Air conditioner

The location for the installation and operation of an air conditioner is guided by the development standards in the SEPP (Exempt and Complying Development Codes) 2008, and by the noise emission standards in the Public Health Act 1991, and the Protection of the Environment Operations Act 1997, and AS 3666 and AS1668 as applicable.

In this case the air conditioner does not meet the development standard to be considered as an exempt or complying development as it is closer than 450mm to the boundary. It complies with the other development standards for location and installation.

The air conditioner is very large, and its location is considered insensitive, as it is located within the side setback between 1 Marine Drive and 3 Marine Drive. If it was installed at the rear of dwelling at 3 Marine Drive would have fully complied with the SEPP, and would have negated any additional impacts from its use.

Although it is likely that its untreated use will add an impact to the residents of 1 Marine Drive, it is considered that the location is appropriate provided the air conditioner is made to comply with the noise emission standards as aforementioned. It is considered reasonable that an acoustic study be submitted to the Principal Certifying Authority at the applicant’s expense, showing an Acoustic Engineer’s report and recommendations for the treatment of the air conditioner to reduce noise emissions (should it be required), in line with those standards. A condition is recommended to this effect.

On inspection, it was noticed that attached to the external wall of 1 Marine Drive, within the same building corridor, was located two (2) air conditioners. It is considered that any acoustic engineer’s report should take into consideration the standard operation of these two (2) air conditioners, when applying recommendations on any study with ambient background noise standards as a principal.

Balcony Extension

The balcony extension towards the eastern boundary at the front of the property is considered to impact on the privacy of one part of the living area and balcony to the dwelling at 1 Marine Drive. Due to the orientation of the two (2) dwellings and the difference in height between the extended balcony level and the floor level of the living area and balcony it is impacting upon it is considered that the impact is not severe.

However, the balcony extension itself is considered excessive, given the original consent approved an appropriate distance between the two (2) balconies, so as to provide greater privacy for both. As such, it is considered the balcony extension would increase an impact on privacy by increasing its immediacy, if used by a person in a standard way in a seated position. From a seated position on the balcony extension, the view of the impacted upon window and balcony is considered much greater than that previously approved.

It is considered that controlling the use of the overbearing and immediate element of the balcony extension, and retaining the area of use of the balcony as originally approved, is the best solution in remedying the unauthorised work.

It is recommended that four (4) fixed planter boxes be installed on the floor of the northern end of the extended balcony, so as not to allow for a table to be placed in that part of the balcony, as this is the part of the extended balcony which causes all of the added impact upon the window and most of the impact upon the balcony at 1 Marine Drive. A condition to this affect is recommended as part of this report.

Social Impact

There are no foreseen negative social impacts arising from the proposal.

Economic Impact

As the proposal is for residential purposes no adverse economic impact is foreseen.

Suitability of the Site

It is considered that the allotment is suitable for the proposed development in terms of the allotment size, shape, orientation and topography. The site is not flood, acid sulphate affected, nor contaminated. The site is not bushfire affected.

5. REFERRALS, SUBMISSIONS AND THE PUBLIC INTEREST

Resident

Adjoining residents were notified by letter and given fourteen (14) days in which to view the plans and submit any comments on the proposal. There were two (2) submissions received.

Note: There is a long history of complaint in Council’s records from neighbouring premises, extending from the application for and construction of the approved development on 3 Marine Drive, Oatley. Some of these concerns, which have been dealt with in previous Council action and assessment, have been reiterated in this application. They are mentioned in the following part of the report, but only those issues pertinent to the application to remedy the unauthorised works are commented upon.

Rear sleeper/timber retaining wall (privacy issues and unauthorised works)

Concerns are raised stating that the development affects privacy and ability to entertain in the backyard, and that is was installed without permission. A historical perspective has been provided regarding a number of retaining walls having been built over a period of time, which has effectively raised the level of the backyard, and has caused ongoing drainage and flooding issues in their backyard and rear study.

The objector suggests the retaining wall be dismantled and land be re-established to its original level, with a new retaining wall re-established in its previous position.

Comment: It is considered that although the concerns are valid, that a dismantling of the retaining wall is inappropriate, as the development itself is reasonable as long as any added privacy impact is controlled.

The property to the rear is lower than that of the subject premises and it is difficult to ascertain the comments made about an ongoing history of raising the level of the backyard. The level of top of the retaining wall under assessment and already built is proposed at the level of the previous retaining wall, shown on a survey dated 26 July 2005. This is the same survey as used in the original assessment.

It is considered that the top of the retaining wall should maintain the level as shown on the survey, and that the level of the backyard be filled in behind. On inspection, the newly retained area of the rear yard is no higher than any other part of the backyard.

The privacy concerns are valid, and because of the angle of view one can achieve into the swimming pool and entertaining area of their premises from the extended/retained part of the backyard, it is considered that a green mesh material be attached to the swimming pool fence on top of the retaining wall, to obstruct any direct views. The material is not to be see-through but must allow natural ventilation and some sunlight to pass through it. It is to be attached to the swimming pool fence along the area of the new part of the sleeper/timber retaining wall (approximately 10m from the rear boundary).

Air conditioning unit noise emissions

Concerns are raised about the air conditioner not ever being approved, and its operating noise level being offensive and affecting the use of the neighbouring dwelling and lifestyle particularly on warm days and evenings.

The objector suggests it should be installed inside the building at 3 Marine Drive to contain noise emissions, and not on the boundary.

Comment: It is considered these concerns are valid. The location of the large air conditioner in a narrow building corridor, close to a boundary and with no significant sound suppressing measures is unreasonable. It is assessed that the air conditioner would not meet the SEPP development standards as it is slightly closer to the boundary the minimum allowed setback of 450mm. Therefore its merits are assessed as a standard air conditioning development within Council’s standards.

The location (given the size of the unit) is unreasonable, however, it too is unreasonable to now ask for the air conditioner (given its size and complex nature of ducting into the dwelling) to be relocated, when its noise emissions can be suppressed to meet the maximum allowed levels. Council in effect attaches standard conditions of consent in controlling noise levels, with the onus falling on the owner to ensure that operating noise emissions do not exceed that allowed.

In this case, as there have already been objections to the noise emissions, it is considered that the onus should now be on the owner of 3 Marine Drive as the person responsible for the installation of the unit, to prove that the noise emissions meet the required level of 5dBA above ambient background noise level measured at the nearest property boundary between the hours of 7.00am to 10.00pm Monday to Friday and 8.00am to 10.00pm on weekends and public holidays. The air conditioning unit if operated outside these hours must not be heard in a habitable room in a neighbours residence.

It is to be conditioned in any consent for an acoustic study to be undertaken with appropriate recommendations applied by the Principal Certifying Authority, for the site.

Loss of privacy from balcony extension

Concerns are raised that the balcony extension increases a privacy impact to a living room, and that the balcony extension be demolished.

Comment:

The extent of the impact upon the privacy of the living room is valid, however, it only affects one small corner of the internal floor plan of the dwelling at 1 Marine Drive.

As previously discussed, this balcony extension increases the impact from that previously approved (which provided a larger distance and more privacy). As such it is important that the type of use for the balcony is restricted, as the reason provided by the applicant (for roof maintenance and cleaning of leaves) is doubtful.

As previously mentioned, it is considered the balcony to remain as constructed, with the installation of fixed planters in the area of the balcony which additionally compromises the privacy of the living room of the objector’s premises.

General concerns regarding unauthorised works on-site

Concerns are raised that summarises a history of complaints made by this resident against the owner’s and builder’s of 3 Marine Drive.

Specific to the application, the objector raises concern regarding the retaining wall, air conditioner and balcony extension, despite these unauthorised works having been installed and constructed a considerable distance from the objector’s property.

Extraneous to the application, the objector relates concerns regarding dividing fences and previously assessed and conditioned issues from the first set of modifications to the original consent. The objector has been advised regarding their rights with dividing fences. A constructed masonry wall fence along the western boundary is assessed as being exempt development.

Council Referrals

No Council Officer referrals were required.

6. CONCLUSION

Having made a detailed assessment of the proposal in accordance with the heads of consideration under Section 79C and Section 96 of the Environmental Planning and Assessment Act 1979, as amended, it is recommended that the development application be approved subject to the conditions as set out below.

RECOMMENDATION

Pursuant to the provisions of Section 96 of the Environmental Planning and Assessment Act, as amended, development consent 06/DA-56 granted on 7 August 2006 for the alterations and additions to existing dwelling on Lot 238 DP 11934 and known as 3 Marine Drive, Oatley, is amended in the following manner:

A. By amending Condition 2 to read:

OC2 – Approved Plans

Plan Number	Plan Date	Description	Prepared By
AD0435/C/01 Issue C	22 Jul 05	Ground floor	ADINC Aust Pty Ltd
AD0435/C/02 Issue C	22 Jul 05 (received 17 Dec 09)	First floor	ADINC Aust Pty Ltd
AD0435/C/03 Issue C	22 Jul 05	Lower ground floor	ADINC Aust Pty Ltd
AD0435/D/01 Issue C	15 Aug 05	North and south elevations	ADINC Aust Pty Ltd
AD0435/D/02 Issue C	15 Aug 05	East and west elevations	ADINC Aust Pty Ltd
AD0435/E/01 Issue C	22 Jul 05	Sections	ADINC Aust Pty Ltd
AD0435/F/01 Issue C	31 Jan 06	Finishes	ADINC Aust Pty Ltd

B. By insert Condition 18(a):

18(a) A new survey and structural engineer’s details are required to be provided to the Principal Certifying Authority to establish the physical location and level of the top of the rear/eastern retaining wall, the level of the land it is to support, and whether the structural integrity of the retaining wall can support the retained land.

C. By inserting Condition 18(b):

18(b) Amended first floor plans and details are required to show the location of four (4) planter boxes of minimum dimensions 1000mm x 500mm x 600mm (L x W x D) installed in the most northern part of the extended balcony (an area of 3m x 2.8m) but not compromising the Building Code of Australia safety distance required for the balustrading. Plants are required to be installed and growing at a minimum height of 1m above the balcony level. The plans are to reflect the existing gates in the balustrading.

The installation of the planter boxes are required to restrict the ability for placing a standard table and chairs in that part of the extended balcony, and restrict privacy impact from a seated position.

D. By inserting Condition 18(c):

18(c) Amended plans and details are required to show the attaching of a green mesh material screen, of the same colour as the existing swimming pool fence on top of the retaining wall. The material is to be attached to the second top horizontal bar on the fence and is to extend towards the horizontal bar closest to the ground level. The material is not to be see-through or solid, but must allow natural ventilation and some sunlight to pass through it. It is to be attached to the fence along the area of the new part of the sleeper/timber retaining wall (starting from a point 10m to the north of the rear boundary along the eastern boundary, and extending southward to the rear boundary).

The screen is to be installed to obstruct any direct views into the rear yard of the adjacent premises.

E. By inserting Condition 18(d):

18(d) An acoustic report/study is required from an acoustical engineer to ascertain the noise emission levels of the air conditioner unit at 3 Marine Drive, Oatley, at the owner’s expense. Should the emissions not meet the maximum allowed levels, then recommendations must be provided to suppress the noise to accepted levels. The following noise emission levels are to be achieved:-

“The noise level of the air conditioning unit will not exceed 5dBA above the ambient background noise level measured at the nearest residential property boundary between the hours of 7.00am to 10.00pm Monday to Friday, 8.00am to 10.00pm weekends and public holidays. The air conditioning unit if operated outside these hours must not be heard in a habitable room in a neighbours residence, that is 10.00pm to 7.00am Monday to Friday and 10.00pm to 8.00am on weekends and public holidays.”

For the purposes of the acoustic report, attention may be paid to the existence and operating noise levels of the air conditioners in the same building corridor at 1 Marine Drive, Oatley.

F. By inserting Condition 38(a)

38(a) Any acoustic report recommendations for the air conditioner, from the qualified acoustical engineer, must be met prior to the issue of an Occupation Certificate.

G. By inserting Condition 40(a)

40(a) The fixed privacy screen attached to the fence on top of the retaining wall, and the planter boxes on the extended balcony must be maintained as approved at the owner’s expense.

* * * * *

DECISION - DAC

THAT the application be deferred for inspection and report by Ward and interested Councillors.

(Moved Councillor A Wagstaff / Seconded Councillor C Hindi)

APPENDIX

DEVELOPMENT ASSESSMENT COMMITTEE
Wednesday, 7th April 2010

DAC039-10 PK - 43 MULGA ROAD, OATLEY - DEMOLITION OF PART OF THE EXISTING GARAGE AND ALTERATIONS AND ADDITIONS TO EXISTING COMMERCIAL/RESIDENTIAL DEVELOPMENT

Applicant	Mr Phillip Connor
Proposal	Demolition of part of the existing garage and alterations and additions to existing commercial/residential development
Zoning	Zone 3a - Neighbourhood business
Planning instruments applicable	Hurstville Local Environmental Plan 1994, Greater Metropolitan Regional Environmental Plan No 2 - Georges River Catchment, Development Control Plan No 1 - LGA Wide - Section 3.1 Car Parking, Section 3.5 Energy Efficiency, Section 3.9 Waste Management
Hurstville Local Environmental Plan 1994 interpretation of use	Business premises and dwelling
Owner/s	Phillip Kevin Connor and Terri Anne Connor
Existing development	Two storey commercial/residential development
Cost of development	$47,500.00
Reason for referral to Council	Five submissions received
Report author/s	Senior Development Assessment Officer, Ms P Bizimis
File No	09/DA-263
Disclosure of political donations or gifts?	No

EXECUTIVE SUMMARY

1. The application seeks permission to demolish part of the existing garage and undertake alterations and additions to the existing commercial/residential development.

2. The application has been assessed against the relevant requirements of the Hurstville Local Environmental Plan and Development Control Plan No 1 and complies.

3. The application was notified in accordance with Council’s requirements and five (5) submissions were received in reply. The issues raised in the submissions are discussed in the report.

AUTHOR RECOMMENDATION

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

REPORT DETAIL

DESCRIPTION OF THE PROPOSAL

The application seeks approval for the demolition of part of the existing garage and to undertake alterations and additions to the existing commercial/residential development. In particular, the application seeks permission to undertake the following works:

* Demolish the existing southern and eastern walls of the existing double garage and reconstruct these walls so that the entrance to the garage is directly from Waratah Street (eastern elevation of the garage). The garage is currently accessible through a right-of-way at the rear of the site with access from Waratah Street (southern elevation of the garage). The entrance to the site from the right-of-way is narrow and does not allow appropriate vehicular access to the garage. The relocation of the garage entrance to the eastern elevation will necessitate a new vehicular crossing to be constructed from Waratah Street. This will include a retaining wall along the northern elevation of the vehicular crossing where part of the landscape embankment on Waratah Street will be removed to provide the vehicular crossing.

* Provide a terrace area to the existing southern most commercial unit on the ground floor. The terrace will be located on the roof of the garage and have an area of approximately 6.5m x 4.5m.

BACKGROUND

Council’s records indicate that development consent for 76/DA-147 was granted for alterations and additions to the existing single storey building including a first floor addition. Condition 3 of the development consent required the provision of two (2) on site car spaces for the development.

DESCRIPTION OF THE SITE AND LOCALITY

The subject site is located on the southern side of Mulga Road, Oatley at the corner of Waratah Street. The site has a width of 6.45m and a site area of 258.9sqm. Existing on the site is a two (2) storey building which contains commercial space and a dwelling.

Adjoining the site on Mulga Road is a one (1) and two (2) storey building containing a shop and residence. To the rear of the site (facing Waratah Street) is a right-of-way which affects part of the rear of the site, and a dwelling. The area surrounding the subject site is characterised by one (1) and two (2) storey commercial buildings on the southern side of Mulga Road and dwellings on the opposite side of Mulga Road. Waratah Street is characterised by one (1) and two (2) storey dwellings.

COMPLIANCE AND ASSESSMENT

The development has been inspected and assessed under the relevant Section 79C(1) "Matters for Consideration" of the Environmental Planning and Assessment Act 1979.

1. Environmental Planning Instruments

HURSTVILLE LOCAL ENVIRONMENTAL PLAN

The land is zoned 3a - Neighbourhood Business and the proposed development is permissible in the zone with the consent of Council. The proposed development meets the zone objectives. In particular the proposed development complies with the relevant clauses of the Hurstville Local Environmental Plan as follows.

Clause 13 - Floor space ratios

The floor space ratio of the development will not change from that existing. The proposed rebuilding of the garage and the proposed terrace do not constitute “gross floor area” for the purposes of calculating the floor space ratio under the Hurstville Local Environmental Plan.

Clause 14 - Tree preservation orders

Six (6) trees will be required to be removed from the Waratah Street landscape embankment to accommodate the proposed vehicular crossing. Council’s Tree Management Officer has advised that no objection is raised to their removal if there is no alternative design. There is no alternative design whereby appropriate access to the garage can be provided. In this regard, no objection is proposed to the removal of the subject trees to accommodate the proposed vehicular crossing.

Clause 15A - Height restrictions for land within zones 3(a) and 3(c)

The maximum number of storeys is two (2) for development within zones 3(a) and 3(c). The proposed development will maintain a two (2) storey height limit.

Clause 19B - Foreshore scenic protection area

The proposed development has been assessed against the requirements of Clause 19B and is consistent with these requirements. In particular the proposed development has been assessed against Clause 19B(4)(a)-(d) and the following comments are made.

* The proposed development has a negligible impact in terms of its visibility from the waterway or foreshore areas, and therefore has no impact on these areas.
* The proposed development does not impact views from adjoining properties and public places to the waterway and adjacent foreshore areas. The subject site is surrounded by commercial and residential development which does not have immediate views to the waterway and foreshore areas.
* The proposed development is unlikely to have an adverse impact on the natural topography, natural rock formations, canopy vegetation of other significant vegetation. The excavation proposed to the Waratah Street is discussed below under the heading “Clause 22 - Excavation, filling of land”.
* The proposed design of the development and selection of materials are considered to be appropriate.

Clause 22 - Excavation, filling of land

The existing garage will be excavated by approximately 600mm to get appropriate floor levels from the proposed vehicular crossing. The provision of a vehicular crossing from Waratah Street will necessitate the removal of part of the landscape embankment to provide the vehicular crossing. A retaining wall will be provided to support the side elevation of the landscape embankment that adjoins the new vehicular crossing.

The applicant has submitted plans and details of the vehicular crossing and the proposed retaining wall prepared by an appropriately qualified engineer. These plans have been examined by Council’s Manager - Infrastructure Planning who has provided appropriate conditions of consent to be attached to any consent granted. These conditions have been attached to the recommendation, should consent be granted. The applicant will be responsible for all costs associated with the provision of the vehicular crossing, retaining wall and any ongoing maintenance.

GREATER METROPOLITAN REGIONAL ENVIRONMENTAL PLAN NO 2 – GEORGES RIVER CATCHMENT

The site is within the area affected by the Greater Metropolitan Regional Environmental Plan No 2 – Georges River Catchment. The proposal, including the disposal of stormwater, is consistent with Council’s requirements for the disposal of stormwater in the catchment.

STATE ENVIRONMENTAL PLANNING POLICY NO 55 – REMEDIATION OF LAND

The subject site is zoned residential and, given the types of uses permissible within the residential zones, it is considered unlikely that the land is contaminated. Based on Council’s records, the subject site has not been used for any potentially contaminating activities. As such, it is considered unlikely that the land is contaminated.

2. Draft Environmental Planning Instruments

There are no draft environmental planning instruments that affect this application.

Any other matters prescribed by the Regulations

The Regulations prescribe the following matters for consideration for development in the Hurstville Council area:

Demolition

Safety standards for demolition and compliance with AS 2601 - 2001 apply to the demolition of any buildings affected by the proposal.

3. Development Control Plans

The proposed development has been assessed against the requirements of Development Control Plan No 1 – LGA Wide and complies with the relevant sections as follows.

DEVELOPMENT CONTROL PLAN NO 1 – LGA WIDE – SECTION 3.1 CAR PARKING

The proposed development does not generate additional parking for the subject site. The subject development will have two (2) on site car parking spaces as required by the development consent granted for the two (2) storey building in 1976.

DEVELOPMENT CONTROL PLAN NO 1 – LGA WIDE – SECTION 3.5 ENERGY EFFICIENCY

The proposed development meets the solar access requirements of Development Control Plan No 1 in that the private open space of adjoining dwellings will receive at least 3 hours of sunlight between 9am and 3pm on 21 June.

DEVELOPMENT CONTROL PLAN NO 1 – LGA WIDE – SECTION 3.9 WASTE MANAGEMENT

A Waste Management Plan has been submitted with the development application that is consistent with the requirements of Development Control Plan No 1.

4. Impacts

Natural Environment

Six (6) trees will be required to be removed from the Waratah Street landscape embankment to accommodate the proposed vehicular crossing. Council’s Tree Management Officer has advised that no objection is raised to their removal if there is no alternative design. There is no alternative design whereby appropriate access to the garage can be provided. The removal of the trees, whilst not desirable, is unlikely to have an adverse impact on the natural environment. The remaining vegetation on the embankment will be retained.

Built Environment

The proposed development will result in minimal changes to the exterior of the existing building being the relocation of the garage entry door and provision of a terrace to the roof of the garage. The overall bulk and scale of the development will essentially be retained. As such the proposed development is unlikely to have an adverse impact on the built environment.

Social Impact

The proposed development has no apparent social impact.

Economic Impact

The proposed development has no apparent economic impact.

Suitability of the Site

The subject site is suitable for the proposed development. The subject site has no apparent impediments that restrict it from being developed for the proposed development. Part of the landscape embankment will have to be removed to accommodate the proposed vehicular crossing, however this can be appropriately addressed through conditions of consent.

5. REFERRALS, SUBMISSIONS AND THE PUBLIC INTEREST

Resident

Adjoining residents were notified by letter and given fourteen (14) days in which to view the plans and submit any comments on the proposal. In response, five (5) submissions were received objecting to the proposal. The issues raised in the submissions are as follows.

Floor Space Ratio

The proposed development does not comply with the floor space ratio requirement.

Comment: The proposed development will not increase the floor space ratio of the existing building. There was additional floor area proposed to the original plans submitted with the application, but the plans have been amended and the proposed work is now limited to the garage and terrace area only. No other work is proposed to the existing building.

Parking on the footpath

Parking on the footpath should not be permitted.

Comment: There is a concrete hard stand area that adjoins the subject site with access off Mulga Road. This area does not constitute part of the subject site, but is part of the footpath/public area. Development consent has never been granted to use the concrete hard stand area by the subject site. The application proposes amendments to the existing double garage so that it is more readily accessible and useable.

Waste storage

No waste storage areas have been provided.

Comment: The use of the subject site will not change as a result of the proposed development. As such additional waste facilities are not required.

Overhangs

There are existing overhangs erected above the footpath.

Comment: The proposed amendments to the garage and introduction of a terrace will be constructed within the boundaries of the site. If there are existing overhangs to the footpath they have not been identified in the survey plan. To ensure that the proposed new work is with the boundaries of the site a condition of consent has been attached to the recommendation which requires a surveyors report to ensure that the completed development will be within the boundaries of the site.

Stormwater

Stormwater drainage is not shown or connected to the kerb.

Comment: The proposed development is to be drained to Waratah Street. The proposed development is to be connected to the existing stormwater system.

Privacy

Privacy impacts from glass wall and terraces.

Comment: The proposed development has been amended from the original plans submitted with the application. The applicant’s architect has modified the terrace so to reduce privacy impacts to any adjoining developments. The terrace area has a privacy screen fitted to the side and rear elevations. The privacy screens are 1.5m high from the finished floor level of the terrace which will restrict views to adjoining developments.

Council Referrals

Senior Environmental Health and Building Surveyor

Council’s Senior Environmental Health and Building Surveyor has raised no objection to the development subject to conditions of consent being attached to any consent granted.

Tree Management Officer

As previously detailed in this report, Council’s Tree Management Officer raises no objection to the removal of the trees from the landscape embankment to accommodate the proposed vehicular crossing.

External Referrals

No external referrals were required for this application.

6. CONCLUSION

The application seeks approval for the demolition of part of the existing garage and to undertake alterations and additions to the existing commercial/residential development. The proposed development has been assessed against the relevant requirements and complies. The issues raised in the submissions received to the application have been addressed through the submission of amended plans. Accordingly the application is recommended for approval subject to conditions of consent.

RECOMMENDATION

THAT pursuant to Section 80(1)(a) of the Environmental Planning and Assessment Act, 1979, as amended, the Council, grants development consent to Development Application 09/DA-263 for the demolition of part of the garage and alterations and additions to the existing building on Lot 1 DP 224593 and known as 43 Mulga Road, Oatley, subject to the attached conditions:

1. Standard conditions as adopted by Council for mixed commercial. Excluding the following conditions: 4 Subdivision; ZC1; MI130.1; OC8; SE941A; S941B; S941C; S941D; S942; S943; S944; S945; S946; S947; S948; ST1(g); MI131; PW6; DR1 (b)-(f); DR12; DR14; FP3; PU1.1; 44 RTA; PU4; PU5; PU6; PU7; PU8; PU9; PU10; PU12; WA9; TRG3; SU58.1; DD2 (e); MI130.2; MI1; MI3; MI7; WA3; MI16; MI17; ZC2; 90 RTA; PV1; LA3; LA5; LA6; MI130.3; PU1.2; BA1; MI130.4; 115 Approved hours of operation; MI7; 117 Drainage maintenance; PV6; 119 Access to visitors parking; PV8; PV9; PV10; PV12; PV13; PV14; PV15; PV16; PV18; PV19; PV22; WA4; WA5; WA8; ZC3; ZC7; ZC8; ZC9; ZC10; ZC11; ZC12; ZC14. Including the following conditions:

2. Approved Plans

Plan Number	Plan Date	Description	Prepared By
A01-A07 Issue B and A08	8 Apr 09	Site and Roof Plan, Site Analysis Plan, Landscape Concept Plan, Stormwater Drainage Concept Plan, Lower Ground Floor Plan Ground Floor Plan, First Floor Plan, East Elevation, South Elevation, Section 1, Erosion and Sediment Control Plan, Waste Management Plan	Svetlana Kostoska
09Eo96-1.00 Rev A	Nov 09	Plans and Details	Eskander and Partners Pty Ltd
Ref: 14238-09	May 09	Level and Detail	J P Bates and Inwood
-	Received 8 Jul 09	External Materials and Finishes	Svetlana Kostoska

Include under ‘To obtain a Construction Certificate’

3. Prior to the issue of a Construction Certificate, structural details and structural certificate from a practising professional engineer are required for the proposed retaining structure on Council land. Structural detail of the proposed retaining structure shall be submitted to Council’s Engineering Department for approval.

4. A balustrade shall be installed on the retaining structure as a safety barrier. Balustrade shall be minimum of 1.2m high above the top of the retaining structure. Prior to the issue of a Construction Certificate, structural details of the balustrade shall be submitted Council’s Engineering Department for approval.

5. There shall be no loss of support to the Council's road reserve area as a result of any excavation works for the approved works. Details prepared by a practising professional engineer of how this support will be maintained during construction shall be submitted prior to the commencement of works.

6. To clarify the existing state of public infrastructure prior to the commencement of any development (including prior to any demolition) the Principal Contractor must submit a dilapidation report, prepared by a professional engineer, on Council’s infrastructure within and near the development site. The dilapidation report must be submitted to Council prior to the commencement of any work and include:

a) Photographs showing any existing damage to the road pavement fronting the site,

b) Photographs showing any existing damage to the kerb and gutter fronting the site,

c) Photographs showing any existing damage to the Council road reserve including retaining structures within the road reserve, and

d) The full name and signature of the professional engineer.

The reports are to be supplied in both paper copy and electronic format in Word. Photographs are to be in colour, digital and date stamped.

The dilapidation report must specify (with supporting photographic evidence) the exact location and extent of any damaged or defective public infrastructure prior to the commencement of any work. If the required report is not submitted then Council will assume there was no damage to any infrastructure in the immediate vicinity of the site prior to the commencement of any work under this consent.

7. Condition 30 Geotechnical Reports - (b) 45 Mulga Road and 74 Waratah Street.

Include under ‘Before Commencement of Works’

8. The applicant shall contact “Dial Before You Dig on 1100” to obtain a Service Diagram prior to the issuing of the Construction Certificate. The sequence number obtained from “Dial Before You Dig” shall be forwarded to Council for Council records.

9. The applicant shall make a separate application to Council’s Traffic Engineering Services, at least six (6) weeks prior to the planned commencement of building works on the subject site for the creation of a “Work Zone” adjacent to the development, if required. Application forms are available on Council’s website.

Include under ‘During Development’

10. No construction related activities shall be carried out within road related area without appropriate traffic control measures to ensure safety of pedestrians and other road users. Traffic Control Measures shall be provided to maintain public safety for pedestrians, workman and other road users, to the satisfaction of Council’s Traffic Engineering Section. Such devices shall comply with the requirements of AS 1742, ‘Australian Standard Manual of Uniform Traffic Control Devices’and RTA’s Traffic Control at Worksites manual.

11. Appropriate Stormwater Protection Measures shall be provided to ensure the gutters are kept clear of obstructions at all times. The applicant shall be responsible to ensure all appropriate erosion and sedimentation control measures are installed prior to the commencement of any construction works.

12. Should the construction or for any other reason, the development requires a building waste container(s) (building skip), then such container shall not be placed or left on a public road or road related area (eg footpath, nature strip, shoulder, road reserves, public carparks, service stations, etc) without the prior approval of Council’s Law Enforcement Section.

Include under ‘Before Occupation’

13. A positive covenant, pursuant to Section 88E of the Conveyancing Act, must be created on the title of the subject property, providing for the indemnification of Council from any claims or actions, and the on-going maintenance of any private retaining structure on Council property for which consent has been given. The wording of the Instrument must be to the satisfaction of Council solicitors and the Instrument must be registered at the Land Property Information Office prior to the issuing of any Occupation Certificate. The applicant shall bear all the legal and administrative costs associated with creating the positive covenant.

14. The Principal Contractor must submit a follow up dilapidation report, prepared by a professional engineer, on Council’s infrastructure within and near the development site to Council upon completion of the work.

The Final Occupation Certificate must not be issued until Council’s Civil Works Engineer is satisfied that the works have been satisfactorily completed and the Principal Certifying Authority has been provided with correspondence from Council to this effect. The dilapidation report must include:

a) Photographs showing any existing damage to the road pavement fronting the site,

b) Photographs showing any existing damage to the kerb and gutter fronting the site,

c) Photographs showing any existing damage to the footway including footpath pavement fronting the site,

d) Photographs showing any existing damage to retaining walls within the footway or road,

e) Closed circuit television/video inspection (in DVD format) of public stormwater drainage systems fronting, adjoining or within the site, and

f) The full name and signature of the professional engineer.

The reports are to be supplied in both paper copy and electronic format in Word. Photographs are to be in colour, digital and date stamped.

The dilapidation report must specify (with supporting photographic/DVD evidence) the exact location and extent of any damaged or defective public infrastructure. If the required report is not submitted then Council will assume any damage to any infrastructure in the immediate vicinity of the site was caused by the principle contractor and owner carrying out work under this consent.

* * * * *

DECISION - DAC

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

(Moved Councillor C Hindi / Seconded Councillor W Pickering)

APPENDIX

Single Dwelling Houses Controls	Standard	Proposal	Complies
Site Area		521sqm
Front Setback	4.5m (primary frontage	4.75m (existing)	Yes
Rear	900mm	14.5m (existing)	Yes
Ground Floor Side Setback	900mm	1.65m (existing)	Yes
Building Control 4.5.3.3	- Building Envelope - 1.5m first floor side setback - 0.45 FSR	1.5m first floor setback (existing)	Yes
Height Maximum	9m Ridge 7.2m - External Wall to Ceiling	8.6m (existing) 6.5m (existing)	Yes Yes
Approved Landscaped Open Space	Min 50% site cover (260.57sqm) Max.20% imp. (52.15sqm) Min. 30% deep soil (78.22sqm)	50.04% (260.73sqm) 60.22% (157.01sqm) 39.78% (103.72sqm)	Yes No (1) Yes
Proposed Modified Landscaped Open Space	Min 50% site cover (260.57sqm) Max.20% imp. (52.1sqm) Min. 30% deep soil (78.15sqm)	41.79% (217.73sqm) 72.11% (157.01sqm) 27.89% (60.72sqm)	No (2) No (3) No (4)
Parking Spaces Required	2 car spaces behind the building line	2 car spaces provided in garage	Yes
Privacy	Windows 9m separation or offset by 1m	Not altered	Yes
Solar Design/Energy Efficiency	Private open space of adjoining buildings to receive minimum 4hrs sunlight between 9am – 3pm on 22 June. Solar access to be preserved.	Not altered	Yes

LEP	Control	Plan	Complies
Total FSR	2:1 max	2.248:1	No
Non residential component	1:1 max	0.36:1	Yes

Plan No.	Plan Date	Description	Prepared By
E20-01	Received 20 Nov 09	Site Plan (Site Analysis)	Archplan
E20-02	Received 20 Nov 09	Floor Plan and Section A	Archplan
E20-03	Received 20 Nov 09	Elevations	Archplan
E20-04	9 Nov 09	Site Coverage Plan	Archplan
E20-05	9 Nov 09	Stormwater Plan/Sediment Control Plan/Sediment Fence Detail	Archplan

Plans	Date	Description	Drawn By
Sheet No. 08	19 Feb 10	Revised Site plan	JMH Living Design
Sheet No. 02	2 Nov 09	Lower and Upper Floor Plans	JMH Living Design
Sheet No. 03	19 Feb 10	Elevations	JMH Living Design
Sheet No. 03	2 Nov 09	Sections	JMH Living Design