m

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Agenda

Inspection Committee Meeting

5 September 2009, 8:30am

 

 


Notice of Meeting

 

Dear Councillors

 

Notice is given of the Inspection Committee, to be held on-site on Saturday 5 September 2009 commencing at 8:30am at 19 Glenview St, Greenwich. The business to be transacted at the meeting is included in this business paper.

 

Yours faithfully



Peter Brown

General Manager

 

 

Important Information

 

The Inspection Committee inspects sites in order for Councillors to inform themselves and listen to any person who has an issue or concern about the proposal.  It is appropriate that any debate and decision take place at a Council Meeting, not onsite.

 

Councillors enter premises at the invitation of the property owner/occupier, and Council encourages the property owner/occupier to allow relevant third parties to accompany the Committee on its inspection.

 

The Committee is governed by Council’s Code of Meeting Practice, and no recording of the meeting is allowed.

 

Committee Meeting Procedures

 

The Inspection Committee Council meeting is chaired by the Mayor, Councillor Ian Longbottom. Items referred to the Committee are referred to a Council or Committee Meeting for determination. Minutes of Council and Committee meetings are published on Council’s website www.lanecove.nsw.gov.au by 5pm of the Thursday following the meeting.

 

The Meeting is conducted in accordance with Council's Code of Meeting Practice. The order of business is listed in the Agenda on the next page. That order will be followed unless Council resolves to modify the order at the meeting.

 

If you do not understand any part of the information given above; require assistance to participate in the meeting due to a disability; or wish to obtain information in relation to Council, please contact Council’s Manager Governance on 99113525.

 

 

 


Inspection Committee 5 September 2009

 

TABLE OF CONTENTS

 

 

 

 

 

 

Referred Reports FROM Planning and Building Committee 17 August 2009

 

1.       Environmental Services Division Report No. 60

SUBJECT: 19 Glenview Street, Greenwich

FROM Planning and Building Committee 17 August 2009

 

2.       Environmental Services Division Report No. 86

SUBJECT: 34 Chisholm Street, Greenwich...................................................... 29

 FROM Planning and Building Committee 17 August 2009

 

3.       Environmental Services Division Report No. 219

SUBJECT: 330 Pacific Highway Lane Cove.......................................................... 38

 

 

 

 

            


Inspection Committee Meeting 5 September 2009

 

Environmental Services Division Report No. 60

 

 

 

 

 

Reference:    Environmental Services Division Report No. 60

Subject:          19 Glenview Street, Greenwich

Planning and Building Committee at its meeting on 17 August 2009 resolved that the matter be referred to the next Inspection Committee Meeting to held on the 05 September 2009.   

Record No:    DA08/278-01 - 7243/09

Author(s):       Rajiv Shankar 

 

 

Property:                     19 Glenview Street, Greenwich

 

DA No:                         D278/08

 

Date Lodged:              24 September 2008

 

Amended plans:         Renotified on 22 May 2009. Additional notification letters sent on 19 June 2009.

 

Cost of Work:              $1,000,000.00

 

Owner             :                       H & W Pty Ltd

 

Author:                         Rajiv Shankar

 

 

DESCRIPTION OF PROPOSAL TO APPEAR ON DETERMINATION

Alterations and additions to an existing residential flat building to convert 3 flats into 2 and the construction of a detached third dwelling house over a basement car park and alterations to the existing pool.

ZONE

Residential 2(a1)

IS THE PROPOSAL PERMISSIBLE WITHIN THE ZONE?

Residential flat buildings are not permitted within this zone. The applicant claims to have existing use rights to use the building as a residential flat building comprising of three flats.

IS THE PROPERTY A HERITAGE ITEM?

Yes

IS THE PROPERTY WITHIN A CONSERVATION AREA?

No

DOES DCP 1- BUSHLAND APPLY TO THE PROPERTY?

No

BCA CLASSIFICATION

Class 2 & 7a

STOP THE CLOCK USED

Yes

NOTIFICATION

Neighbours                     56-58, 60-64, 66 Greenwich Rd, 4, 6, 8, 12, 13, 15, 17, 21, 23, 23A, 25 Glenview St,

Ward Councillors            Clr D Brooks-Horn, Clr P Palmer, Clr R Tudge

Progress Association:    Greenwich Community Association

Other Interest Groups:    Lane Cove Historical Society.

Additional Groups:          2, 3, 27 Glenview Street, Greenwich Conservation Group, Craddock Murray Neumann, Moody & Doyle

 

 

 

REASON FOR REFERRAL:

 

The application is referred to the Planning and Building Committee meeting on the request of the Mayor Clr Longbottom, Clr Palmer and Clr Tudge having regard to issues raised by the community.

 

EXECUTIVE SUMMARY:

 

·     The subject site has a two storey brick and tile dwelling house which has been converted to 3 flats and is listed as a heritage item (B95) in Lane Cove Local Environmental Plan 1987.   The heritage item is described as being:

 

“a pair of two-storey substantial brick houses, which appear to have been built to the designs for a first-class house in the1885 Greendale Park Estate Subdivision Advertisement.  The houses stand on high ground, asymmetrical in form, with front verandahs to both upper and lower floors and a protruding bay.  The ground floor of 21 is rough hewn sandstone, the upper floor brick with sandstone string coursing.  There are two fine corbelled chimneys.  The timber verandah posts are of simple design.  The front gable has a decorative barge board.  French doors open onto the verandah.  Two large pines remain to the front of the house.  19 appears to be of slightly later date with its ornamental terracotta crest tiles to the roof, two chimneys and gable treatment of rough cast and timber decoration.  French doors open onto the verandah.  A modern carport has been built to the front of the house.  Both houses have been extended and are presently being used as flats”.

 

·     The applicant claims that the subject property has existing use rights to use the property for 3 residential flats.  Relevant material, provided by the applicant in support of the claim for having existing use rights, was considered by Council’s solicitors. Based on the evidence provided, Council’s solicitors have agreed with the existing use claim.

 

·     Assessment of the proposal is based on merit as Council’s Codes and Development Controls Plans do not apply, but have been used as a guide.

 

·     The original proposal was for a 2 storey dwelling over basement parking at the front of 19 Glenview.

 

·     In the amended proposal, the level of the basement and the floor level of the front building have been reduced by 1.0m. The proposed two storey front building has been changed to a single storey building. The overall height of the building has been reduced by 1.47m.

 

·     Council’s heritage advisor has stated that the matters raised with regard to heritage significance have been taken into consideration in the amended proposal. Most items of the proposed works, which detrimentally impacted upon the heritage item, have been suitably addressed. The report concluded that the proposal is more sympathetic to the site and is less dominant.

 

·     The additional items, which would have an impact upon the heritage significance, have been amended as per conditions 2 and 3 in the draft conditions.

 

·     The proposal is recommended for approval subject to draft conditions.

 


SITE:

 

The site is located on the western side of Glenview Street. The site is rectangular in shape with front and rear boundaries of 18.29m, side boundaries of 45.72m and an area of 836.22 m2. The site falls towards the street. 

The site features a federation style two storey brick and tile dwelling house which has been converted into 3 flats and is listed as a heritage item (B95) in Lane Cove Local Environmental Plan 1987. The building is located towards the rear of the site.  There is an existing in-ground pool towards the rear. Towards the front along the northern boundary is a flat metal roofed open carport.

 

There are two trees towards the front of the existing building.  The smaller tree towards the southern side is proposed to be removed and the larger tree towards the northern side is proposed to be retained.  Neighbouring to the south is a similar federation style two storey building also listed as a heritage item (B95). This dwelling house is also located towards the rear of the site. There is a three car garage towards the front along the southern boundary.  Neighbouring to the north is a single storey brick and tile dwelling house.   Site Plan and Notification Plan attached (AT1 and AT2).

 

PROPOSAL:

 

The proposal includes the following:

 

·     Additions and alteration to the existing building which includes conversion of the existing three flats into two flats, a dormer window towards the front and a second floor addition towards the rear.

·     Demolition of the existing carport.

·     Construction of an underground car-park to provide for parking of six cars for all three flats.

·     Construction of a single story building above the proposed car-park, towards the front of the existing building, to replace the removed third flat from the existing building.

·     Construction of walls within the existing swimming pool to create a smaller rectangular pool.

·     Construction of decks and a gazebo towards the rear of the existing building.

 

The proposal for a 2 storey dwelling at the front of the site was amended. The amendments include the following:

 

·     The level of the basement and the floor level of the front building have been reduced by 1.0m.

·     The proposed two storey building towards Glenview Street has been modified to be a single storey building.

·     The overall height of the proposed building towards the front has been reduced by 1.47m and is varies from 5.2m to 4m above natural ground level.

 

PREVIOUS APPROVALS/HISTORY:

 

DA431/99 – Demolition of existing dwellings and construction of 8 units – Refused.

DA298/99 – Demolition of existing dwellings and construction of 10 units – Refused.

 

For the purpose of comparison, the proposal has been assessed against the requirements of the Dwelling House Code and the Residential zones DCP for Flats.

 


DWELLING HOUSE CODE - PROPOSAL DATA/POLICY COMPLIANCE:

 

Site Area (836.22m2)

 

PROPOSED

 DWELLING HOUSE CODE

COMPLIES

Floor Space Ratio       (max) Including the area of the existing building and the proposed new building. Area of the basement has not been included.

0.51 (426m2)

0.5 (418m2)

NO (+8m2)

Soft Landscaped Area            (min)

Landscape area above the basement has not been included.

25.3%

35%

NO (-81m2)

Side Boundary Setback (min).

Existing Building:

New Building:

Basement:

 

Existing

1.5m

Nil

 

1.5m

1.5m

1.5m

 

NA

Yes

NO

Overall Height (m)       (max)

9.5m (existing blg)

9.5m

Yes

Ceiling Height (m)       (max)

7.0m (existing blg)

7.0m

Yes

No of Storeys

2 (proposed extension to existing blg)

2

Yes

Building Line    (max)

7.962m

7.5m

Yes

Foreshore Building Line (min)

NA

NA

NA

Cut and Fill      (max)

3.0m approx (for basement)

1m

NO

Deck/Balcony width    (max)

0.9m

3m (if elevated by >1m)

Yes

Solar Access  (min)

3 hours

3 hours to north elevation

Yes

Basix

Provided

Required

Yes

 

RESIDENTIAL ZONES DCP PART V- FLATS - PROPOSAL DATA/POLICY COMPLIANCE:

 

 

PROPOSED

 RESIDENTIAL ZONES DCP PART V- FLATS

COMPLIES

OBJECTIVE

The subject site is zoned Residential 2(a1).

 

 

Nearby development comprise of single dwelling houses. There is no nearby flat or town house development.

Objective is to encourage infill flat development on Residential 2(c) Zone.

 

Development should in harmony with the nearby flat and town house development.

NO

 

 

 

NO

BUILDING DESIGN & SCALE

The proposal maintains the existing residential character.

 

The proposal is sympathetic to adjoining and surrounding buildings in terms of height, materials roof pitch and overall character.

Preservation of existing residential character.

 

Architectural style be sympathetic to adjoining and surrounding buildings in terms of height, materials roof pitch and overall character.

Yes

 

 

Yes

MINIMUM SITE AREA

836.22m2 

 

1000m2

 

NO

 (-163.78m2)

MAXIMUM DENSITY

1 dwellings per 278.74m2

 

1 dwelling per 175m2

 

Yes

VIEWS AND OVERSHADOWING

Does not significantly affect any available views from adjoining buildings.

 

Does not significantly decrease the amount of sunshine access available to the adjoining buildings.

Not significantly affect any available views from adjoining buildings.

 

Not significantly decrease the amount of sunshine access available to the adjoining buildings.

Yes

 

 

 

Yes

SETBACKS

Front:

 

 

Side:

 

New building - matches adjoining

 

New building - matches adjoining

 

 

Match neighbouring residential development.

 

Not less than neighbouring or nearby development

 

Yes

 

 

Yes

LANDSCAPING

55%

50% of the site.

This includes private open spaces and swimming pools.

Yes

CAR PARKING

6 spaces

Flat -1 : 3 Bed sit – 2 space

Flat -2 :  Bed sit– 1 space

Flat -3 : 2 Bed – 1.5 space

Visitor space – 1 space

Total = 5.5 spaces

Yes

 

REFERRALS:

 

Manager Assets

 

No objections expressed subject to draft conditions in relation to drainage and construction works.

 

Manager Parks

 

The proposal requires the removal of 1 Golden Cypress tree and retention of a Himalayan Cedar. No objection was raised to the removal of the Cypress and conditions have been provided to support the retention of the Himalayan Cedar.

 

Rural Fire Service

 

The site is located in an area which requires management as an Inner Protection Zone.  Draft conditions of consent have been provided.

 

Manager Traffic

 

Council’s Traffic Manager has considered the proposal and suggested a number of draft conditions relating to the size and marking of the car spaces.

 

Building Surveyor

 

No objection was expressed subject to compliance with the requirements of the Building Code of Australia.

 

Solicitors

 

Legal advice was sought from Council’s solicitors at various stages. The advice provided is summarised below:

 

Advice As Per The Letter Dated 5 November 2008.

 

REBUILDING:

 

“The proposed new building (which would comprise flat 3) would be permissible under the rebuilding provisions contained in clause 41 of the Environmental Planning and Assessment Regulation where existing use rights have been established.

 

In North Sydney v Stevens (1992) 75 LGRA 337 the Court acknowledged the requirement for a “liberal construction” for the term “rebuild” and said, accordingly, the word should not be limited by considerations of the size, character or design.

 

In Peddle, Thorp and Walker Architects Pty Ltd v Woollahra Council (2000) NSWLEC 279 (albeit by consent), the Court held that a proposal to construct an additional building on the same site as an existing building enjoying existing use rights was possible.

 

In Mona Vale Pty Ltd v Pittwater Council (2003) NSWLEC 74 the Court held that a three storey shopping centre with car parking which bore no relationship to the building it was proposed to replace was nonetheless authorised under the existing use “rebuilding” provisions because the existing single storey shopping centre enjoyed existing use rights. In addition, the Court held that redevelopment was not limited to the surface of the land but could include subterranean car parks.”

 

The Assessment of the Proposal if Existing Use Rights Can Be Established

 

Section 108(3) of the Environmental Planning and Assessment Act 1979 provides:

 

            “An environmental planning instrument may, in accordance with this Act, contain provisions extending, expanding or supplementing the incorporating provisions, but any provisions (other than incorporated provisions) in such an instrument that but for this subsection, would derogate or have the effect of derogating from the incorporating provisions have no force or effect while the incorporated provisions remain in force.”

 

Therefore, in Fabcot Pty Ltd v Hawkesbury City Council (1997) LGERA 373 the Court held that zoning and zone objectives are not relevant considerations on the redevelopment of a site enjoying existing use rights.  In Taipan Holding v Sutherland Council (1999) NSWLEC 276 the Court extended the same reasoning to subordinate controls such as that contained in Council Policies and DCPs.

 

Planning Principles

 

The Court has however, subsequently softened its position in that regard and there are a number of Planning Principles giving guidance in respect of some including the following:

 

In Michael Hesse Associates v Parramatta City Council (2003) NSWLEC 387 an existing motel was to be converted to residential apartments where the majority of nearby development was single storey. The Court had regard to relevant planning instruments as being indicative of the planning regime that would apply to the site surroundings.

 

In Bonim Stanmore v Marrickville Council (2004) NSWLEC 671 the proposal was for a four storey housing complex. Again, the Court had regard to the LEP as indicative of the nature of future development to be expected around the site. The development was refused on the bases that it was grossly out of scale with its context.

 

In Fodor v Hornsby Shire Council (2005) NSWLEC71 the Court outlined the following Planning Principles applicable to the redevelopment of sites enjoying existing use rights:

 

(i)         How does the bulk and scale (as expressed by height, floor space ratio and setbacks) of the proposal relate to that which is permissible on surrounding sites.

 

(ii)        What is the relevance of the building in which the existing use takes place (ie the retention of the existing building is more defensible than the creation of a new building)?  The impact of new building works on the existing building, which is a heritage item, would therefore be a relevant consideration.

 

(iii)       What are the impacts on adjoining lands?

 

(iv)       What is the internal amenity?

 

Advice As Per The Letter Dated 6 January 2009

 

Council’s solicitors considered material provided by the applicant in support of their claim for having existing use rights to use the subject property for the purpose of flats. The solicitors have concluded the following:

 

“On the material provided, it appears to us that on balance the lawful commencement of existing use may be inferred and there does not appear to be any evidence of its abandonment thereafter.  It is open to Council therefore to make its assessment of the application on the basis that the premises enjoy existing use rights.”

 

Advice As Per The Letter Dated 3 April 2009

 

The advise in this letter was in response to the issues raised in a letter by Susan Hill and associates Lawyers Pty Ltd which questioned whether the proposal was a change of use that was contrary to the existing use rights provisions.

 

“The proposal to convert the existing residential flat building from 3 flats into 2 and construction of a detached third unit over a basement car park does not constitute a change of use”.

 

Additional Information With Regard To Existing Use Rights:

 

“Reference is made to the Planning Principle established by Commissioner Roseth in Fodor v Hornsby Shire Council (2005) NSWLEC71 which are as follows:

 

Regulation 41(1) of the Environmental Planning and Assessment Regulations 2000 states that

An existing use may, subject to this Division:

 

a) be enlarged, expanded or intensified; or
b) be altered or extended;
c) be rebuilt;
d) be changed to another use, including a use that would otherwise be prohibited under the           Act.

 

A long line of legal authority has held that provisions of planning instruments that derogate (ie detract) from Regulation 41(1) do not apply to the assessment of applications on sites with existing use rights. A useful summary of the legal tests for existing use rights can be found in the decision of the Court of Appeal, Ashfield Municipal Council v Armstrong [2002] 122 LGRA 105 by Davies AJA at paragraphs 13 to 15.  Thus the consequence of preserving existing use rights is that zone objectives and planning controls that limit the size of a proposal (ie floor space ratio, height and setback) have no application.”

 


Heritage

 

The application could not be dealt with by Council’s usual advisor, as he advised a conflict of interest.  The application was then referred to Graham Brookes and Associates.

 

Heritage Advisor 1 -  Graham Brookes and Associates

 

The independent heritage advice concludes that the proposed free standing two story residential flat building in the front garden of the subject property, combined with the large almost full width terraced platform over the garage, would have an adverse impact upon on the setting and heritage significance of subject listed heritage property and the adjoining property at 21 Glenview Street.

The proposed recessed attic level balcony and non traditional dormer in the front section of the roof are considered unacceptable on the architectural character of the Federation style existing building.

 

Removal of door case and sidelights opening on to the top verandah would also have an impact upon the architectural style of the existing building attached (AT3)

 

In referring the matter to Graham Brookes and Associates, copies of objection letters were also referred.  As this was not standard practice, the procedure was contested and a further heritage consultant was selected and advice sought.

 

Heritage Advisor 2  -  Graeme Drew and Associates

 

Original Proposal

 

The second independent heritage advisor concludes that the proposed free standing residence, fence and gates located in the front garden are considered a major intrusion, obstructing a clear view of the existing residence and in terms of street presentation for the heritage item. The street vista is an important factor in the heritage value of 19 & 21 Glenview Street. The association of both the heritage items is broken with the proposed fence, garage and the new building with terraces. The proposal interrupts the vista of the existing heritage items from the street attached (AT4). 

 

The issues were discussed with the applicant and an amended proposal was submitted.

 

Amended Proposal

 

The response to the amended proposal is that the matters raised have been taken into consideration. Most items of the proposed works, which detrimentally impacted upon the heritage item, have been suitably addressed. For the remaining items, the following modifications have been suggested:

 

1.   It should be made clear to applicant that Council will not allow any future extension or addition to this proposed new structure.

2.   The masonry enclosure for the bins be reduced in height and the overhead pedestrian gate structure be deleted.

3.   The earthwork be moulded to the existing ground line along the south western boundary and an alternative be considered to the rigid high fence, a more transparent fence at a reduced height similar to that proposed for the vehicle gates and pedestrian gate attached (AT5).

 

Any future extension or addition to the proposed new structure, stated in recommendation 1 above, would be subject to a separate application and would be dealt with on merit.  Items 2 & 3 have been included as conditions in the draft conditions of consent.

 

EXISTING USE RIGHTS – Planning Principles

 

Planning principles: Assessment of proposals on land with existing use rights four questions usually arise in the assessment of existing use rights developments, namely:

1.         How do the bulk and scale (as expressed by height, floor space ratio and setbacks) of the proposal relate to what is permissible on surrounding sites?

 

As indicated in the compliance table in the report above, in the amended proposal where the proposed front new building has been reduced to single storey, the total floor space ratio is not substantially more than the maximum permissible within the area. The front setback of the proposed front new building is similar to the front setback of the adjoining dwelling house towards the north. The northern side boundary setback is 1.5m which is more than the minimum required for a single storey dwelling house. The proposal is well below the maximum height limit for dwelling houses. Therefore it is considered that the proposal would not be substantially in excess of that permissible on the surrounding sites.

 

2.         What is the relevance of the building in which the existing use takes place?

 

The proposal does not include a change of use or the demolition of the existing building. The existing building is a heritage item. The location of the new works would maintain the relation of the paired buildings. As indicated in the report, the proposed works would not have a detrimental impact upon the heritage significance of the heritage items.

 

3.         What are the impacts on adjoining land?

 

The proposal meets the requirement for overshadowing as indicated in the code for dwelling houses. The proposal provides for reasonable sunlight to the habitable rooms and recreational area of the adjoining properties. It is therefore considered that the proposed development would not have a detrimental impact upon the amenity of the adjoining properties. 

 

4.         What is the internal amenity?

 

It is considered that the proposal provides for an adequate level of amenity in terms of adequate solar access and privacy. 

 

Therefore it is considered that the proposal meets the criteria established in the Planning Principles established for developments on properties with existing use rights.

 

79 (C) (1) (a) the provisions of any Environmental Planning Instrument

 

Lane Cove Local Environmental Plan 1987

 

The subject site is zoned Low Density Residential 2(a1) under the provisions of Lane Cove Local Environmental Plan 1987.  Residential Flat Buildings are not permitted within this zone. The proposal may be considered under existing use rights as demonstrated previously in this assessment.

 

Draft Lane Cove Local Environmental Plan 2007

 

The proposal remains prohibited under the R2 zone where the site is located. However, as stated above, the proposal can be considered under the provisions of existing use rights of the Environmental Planning and Assessment Act 1979.

 

Lane Cove Code for Dwelling Houses – September 2000

 

For comparison purposes, the proposal would not comply with the following provisions of the code:

 

·     Maximum Floor Space ratio.

·     Minimum soft landscape area.

·     Side setback for the basement car garage.

·     Maximum cut and fill.

 

Residential Zones DCP Part V- Flats

 

As indicated in the policy compliance table the proposal would not comply with the following provisions of the code:

 

·     The objective relating to the 2(c) zone.

·     Minimum site area.

 

Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (the SREP) and Sydney Harbour Foreshores and Waterways Area Development Control Plan for the SREP (the DCP)

 

The Municipality of Lane Cove is identified as being within the Sydney Harbour Catchment of the SREP.  The subject site is also located within the Foreshores and Waterways Area as indicated on the Foreshores and Waterways Area map contained within this SREP, and as such, is subject to the DCP that complements the SREP.

 

The SREP aims to recognise, protect, enhance and maintain the catchment, foreshores and waterways and islands of Sydney Harbour and to achieve a high quality and ecologically sustainable urban environment.  Part 3 of the SREP addresses the Foreshores and Waterways Area.  Within Part 3, Division 2 sets out Matters for consideration which Council is to consider in assessing new development.  Of the clauses 20-27 listed for consideration, the proposed works would not raise any significant issues.

 

Under the DCP the proposed works would not raise any significant issues in relation to the relevant sub-sections, i.e. 5.3 (Siting of buildings and structures) and 5.4 (Built form).

 

79C (1) (b)   The likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality.

 

The proposed development is not substantially in excess of the maximum permissible floor space ratio that is applicable to surrounding development in the Residential 2(a) zone. Therefore, the proposed development is not considered to be excessive in bulk and would not unreasonably impact upon the amenity of the adjoining properties.

 

The proposed free standing single storey residential flat building, in the front of the subject property, would complement the existing garage structure located on the southern side of the adjoining heritage property at 21 Glenview Street.

 

Privacy

 

The proposal has been designed to minimise the overlooking of adjoining properties. The proposed flat 3 has no north facing living room windows to ensure that a reasonable level of privacy is maintained between the adjoining properties.

 

Views

 

An objection to the development from the resident of 17 Glenview Street has been that the proposed development would have an adverse impact on views.

 

In determining what impact on views would result from a development, the L&EC case Tenacity Consulting vs Warringah Council (2004) NSW L&EC 347 has become the basis for the planning principle used to examine view sharing. In this Commissioner Roseth framed a series of questions which should be addressed in assessing whether the impact on views is considered unacceptable.  The following is an assessment of the application in terms of these questions which are:

 

1.         The assessment of the views to be affected. Some views (eg. water views, views of iconic buildings) are valued more highly than others.

 

2.         Consider from what part of the property the views are obtained.  Also, consider sitting or standing views Protection of sitting views across side boundaries are more difficult than from front and rear boundaries.

 

3.         Assess the extent of the impact.  This should be done for the whole of the property, not just the view that is affected. Views from living areas (including kitchen areas) are more significant than from bedrooms.

 

4.         Assess the reasonableness of the proposal that is causing the impact.  Factors include whether the proposal complies with development standards and whether view loss could be ameliorated by better design. View impact from a complying development would probably be considered acceptable, and view sharing reasonable.

 

In assessing the impact on views it is considered that:

 

1.         The views likely to be affected are not high value in that they are not iconic or of grand vistas, but offer more of an ambient general openness to the south.

 

2.         The views being impacted are across the side boundaries rather than from the front or rear of the property and are thus recognised as being difficult to protect.

3.         The existing views from the front of the building would not be significantly impacted.

 

4.         The proposal would exceed the planning controls of dwelling houses as the subject site has existing use rights. In this respect the impact upon views in considered reasonable. 

 

In view of the above, it is considered that the proposal reasonably satisfy the requirements of view sharing principles with 17 Glenview Street.

 

Overshadowing

 

Clause 3.4 of the DCP requires that the proposal should “give reasonable sunlight to the habitable rooms and recreational area of the adjoining properties between 9.0am and 3.0m on 22nd June”

And “portion of north facing window of the neighbouring dwellings receive at least 3 hours of sun between 9.00am to 3.00pm on 22nd June.”

 

The proposal presents an acceptable level of overshadowing and is unlikely to significantly impact on the level of solar access to adjoining developments. The shadow diagrams indicate that private open space & the windows serving habitable rooms in the adjoining dwelling receive 3 hours of sunlight between 9am & 3pm and in this regard it is considered that solar access would be retained in accordance with the requirements of the DCP.

 

Access, Transport and Traffic

 

In the proposal, provision is made for six off street car parking in an underground car parking area. This meets the parking requirements for the three residential flats. The number of flats is proposed to remain unaltered. Therefore, it is considered that the amount of traffic would not increase as a result of the proposed development. Engineering and traffic requirements are included in the draft conditions of consent.   It was noted, during inspections, the parking on the street is quite heavy and the provision of parking for the development is supported.

 

Heritage

 

The applicant’s heritage study report states that the proposal maintains the existing forms and introduces new works which are cohesive in form, location and detail to the existing fabric and site planning. The location of the new works would maintain the relationship of the paired building. The report acknowledges that the proposed works would have some impact upon the sight lines of the existing buildings but does not elaborate upon the extent of impact upon the sight lines.

 

With regard to the original proposal, both of the reports by Council’s heritage advisors have indicated that the proposal would compromise viewing of the heritage item from the street and have an adverse impact upon the heritage significance of subject heritage listed property and the adjoining heritage listed property at 21 Glenview Street.

 

In the amended proposal, the level of the basement and the floor level of the front building have been reduced by 1.0m. The proposed two storey front building has been converted into a single storey building. The overall height of the building has been reduced by 1.47m.

 

With regard to the amended proposal, Council’s heritage advisor has stated that the matters raised with regard to heritage have been taken into consideration. Most items of the proposed works, which detrimentally impacted upon the heritage item, have been suitably addressed. The report concluded that the proposal is more sympathetic to the site and is less dominant to the site.

 

The items, which would have an impact upon the heritage significance, have been amended as per conditions 2 and 3 in the draft conditions of consent.

 

Based on the advice from the heritage advisor, It is considered that the amended proposal would not have a detrimental impact upon the heritage significance of the heritage items.

 

Stormwater

 

Stormwater drainage as been assessed by Council’s Engineer and roof water & run off to be disposed of in accordance with the Stormwater Design Code. Conditions relating the storm water drainage have been included in the draft conditions of consent.

 

Trees

 

There are two significant trees on the site. The existing Golden Cypress tree is proposed for removal which is considered acceptable by Council’s tree preservation officer. The existing Himalayan Cedar is proposed for retention. Conditions relating to the retention of the tree have been included in the draft conditions of consent.

 

Section 79C (1) (c) - The suitability of the site for the development

 

The proposal maintains the existing residential flats on the site. Accordingly the site is considered suitable with respect to the proposed development.

 

Section 79C (1) (d) - Any submissions made in accordance with this Act or Regulations.

 

The proposal was advertised in accordance with Council’s policy of Community Consultation and 16 submissions were received in response to the notification of the original proposal, two late submissions were received, one from Moody & Doyle Town Planners and one from Craddock Murray Neumann Lawyers. The amended plans were renotified and 12 submissions and 1 letter of support was received. The issues raised in the submissions are as follows:

 

 

Existing Use Rights

 

The applicant must prove that the property had been approved as flats and have been used as flats up to the present times without a break to prove existing use rights.

 

Comment

 

All documentation provided by the applicant was referred to Council’s solicitors who have stated that lawful commencement of existing use may be inferred and there does not appear to be any evidence of its abandonment thereafter, concluding that the premises enjoy existing use rights.

 

In the event that existing use rights do exist, they must be confined to the existing structure and cannot be extended to a new and separate building.

 

Comment

 

As per the legal advice received by Council, a proposal to construct an additional building on the same site as an existing building enjoying existing use rights is possible. The Ref Peddle, Thorp and Walker Architects Pty Ltd v Woollahra Municipal Council (2000) NSWLEC 279 (albeit by consent).

 

Impact Upon Views From 17 Glenview Street

 

The views of the city ‘skyline’ and the bush from the rear garden would be impacted.

 

Comment

 

As discussed previously in the report above the proposal is considered satisfactory with regards to view sharing principles.

 

Potential overlooking from the proposed dormer at the rear (western elevation of the existing building).

 

Comment

 

The window towards the rear serves a bedroom and is located substantially away from the side boundaries. The addition is substantially towards the rear and does not overlook the rear open space of the adjoining property. It is not considered that this window would impact upon the privacy of the adjoining properties.

 

Potential overlooking from any window at the rear (western) elevation of the proposed new flat. - original proposal.

 

Comment

 

The front new dwelling has been modified to be a single storey building. The only west facing kitchen window would not overlook the adjoining property.

 

The proposal includes replacement of balustrades along a deck very close to the southern side boundary. The deck exists very close to the side boundary.


 

Comment

 

The deck is existing. There are no objections to the replacement of balustrades of the deck. The deck does not overlook private open space of the adjoining property.

 

Potential damage is possible because of the impact of mechanical rock pick machines which may be used for the excavation for the basement.

 

Comment:  Draft condition 27 has been included in the conditions of consent to address this concern.

 

Overdevelopment and Excessive Building Bulk

 

The size of the block is 836m2, well below the 1000m2 minimum required for construction of flats. It is also under 900m2 required under dual occupancy code. The proposal for construction of three flats is considered to be an overdevelopment. The combined footprint of the existing building and new dwelling is excessive.

 

Comment

 

The proposal is not substantially in excess of the maximum permissible floor space as required by Dwelling Houses Code. It also meets the height and setback requirements. The existing dwelling is set well back from the street. The proposed free standing third unit has setbacks similar to that of the adjoining development and would not adversely impact upon the amenity of the adjoining development.

 

Therefore it is considered that the proposal does not appear to be visually excessive in bulk.

 

The proposal does not meet the objectives of Lane Cove LEP 1987.

 

Comment

 

As per legal advice received by Council, in Fabcot Pty Ltd v Hawkesbury City Council (1997) LGERA 373 the Court held that zoning and zone objectives are not relevant considerations on the redevelopment of a site enjoying existing use rights.

 

Impact Upon Heritage Item:

 

19 & 21 Glenview Street are viewed as a pair of heritage items mirror image in building bulk and set back from the street. Addition of a two storey building and the underground car-park, stepped terraces and gares in front of the heritage item would block the view of the building from the street and impact upon the heritage significance of the heritage item.

 

Comment

 

It is agreed that the original 2 storey proposal would have detracted from the vistas of the heritage item.

 

In the amended proposal, Council’s heritage advisor has stated that the matters raised with regard to heritage have been taken into consideration. Most items of the proposed works, which detrimentally impacted upon the heritage item, have been suitably addressed. The report concluded that the proposal is more sympathetic to the site and is less dominant to the site.

 

Also, the front of property structures and retaining walls which would have an impact upon the heritage significance, have been deleted by conditions 2 and 3 in the draft conditions.

 

It is considered that the amended proposal would not have a detrimental impact upon the heritage significance of the heritage items.

 

Level 2 of the new third flat would overlook on the existing north facing windows of 23B Glenview Street.- original proposal

 

Comment

 

The front new flat has been concerted into a 1 storey building. The only west facing kitchen window would not overlook the adjoining property. The proposed south facing windows are on ground floor. In addition there is significant distance between the proposed flat three and 23B Glenview Street. Therefore, it is considered that these windows would not impact upon the privacy of the north facing windows of 23B Glenview Street.

 

Streetscape

 

Definition of Residential Flat Building (RFB) in the LEP

 

The definition of a Residential Flat Building in the LEP is a building containing three or more dwellings. The proposal is for two separate buildings. The existing building would have two dwelling and the second building will have one dwelling.

 

Comment

 

As per Council’s legal advice to convert the existing residential flat building from 3 flats into 2 and construction of a detached third unit over a basement car park does not constitute a change of use, and remains a residential flat development.

 

Soft Landscaping

 

The soft landscape area is below the minimum area specified area of 50% for flats and less than 35% for dwelling houses.

 

Comment

 

The proposed soft landscape area is 25.3% as against the requirement of 35% as per the single dwelling house code. The calculation do not included the pool area and the landscaping provided above the basement parking. However the landscape area for flats, which includes swimming pools, complies with the minimum requirement of 50%. Considering the pool area and the landscaping above the parking, it is considered that adequate open space has been provided on the site.

 

Zoning of The Site

 

The subject site is zoned Residential 2(a1) and flats are not a permitted use.

 

Comment

 

It is agreed that a ‘residential flat building’ is not a permitted use within this zone. However, the proposal has been submitted on the basis of existing use rights, and can in accordance with the Act, be considered.


 

Bushland

 

The site is in the vicinity of bushland and should contribute to bushland management.

 

Comment

 

The application was referred to Rural Bush Fire who have recommended that the entire property be manages as an ‘Inner Protection Area’ as outlined within Planning for Bushfire Protection 2006.

 

Potential Precedent

 

The proposed development would form a precedent of similar development within the surrounding area.

 

Comment

 

This development would not form a precedent within the area because every application is assessed on its merits and this particular site enjoys existing use rights unlike other properties in the area.

 

Additional Issues Raised In Response To The Notification of Amended Proposal

 

Impact Upon Heritage Item

 

Comment

 

Council’s heritage advisor has advised that the amended proposal would not significantly impact upon the heritage significance of the heritage items.

 

Existing Use Rights and Multiple Dwellings

 

Comment

 

Existing use rights on the subject property have already been established. There is no increase in the number of dwellings on the subject property.

 

Increase in Traffic

 

Comment

 

Number of dwellings is not being increased. Therefore, there would be no additional demand in traffic.  Adequate on-site parking has been provided.

 

The proposal does not comply with the existing zoning of the land. The proposal does not take into consideration the zone objectives of the Draft Local Environmental Plan 2009.

 

Comment

 

Existing use rights on the subject property have already been established. As indicated in the legal advice referenced earlier in the report, zone objectives and planning controls that limit the size of a proposal (ie floor space ratio, height and setback) have no application.

 


Public Interest

 

Comment

 

It has been established that the subject property enjoys existing use rights. Therefore the proposal is considered to be in public interest, notwithstanding the objections to the proposal, which have been commented upon in the above report.

 

Section 79C (1) (e) - The public interest.

 

The proposed development is considered satisfactory with respect to the provisions of existing use rights of the Environmental Planning and Assessment Act 1979.  It is considered that the amended proposal would not have any significant detrimental impact upon the significance of the heritage items as advised by the Council’s heritage advisor.  The proposed development does not create any major environmental impacts. Accordingly it is considered that the proposed development is in the public interest.

 

CONCLUSION

 

The application has been assessed having regard to existing use rights of the Environmental Planning and Assessment Act 1979, the relevant Planning Instruments and Council controls, as well as public good and suitability of the site. The proposal is considered to be satisfactory subject to the following conditions. The matters under Section 79C of the EP&A Act have been considered and are considered to be adequate and satisfactory.

 

RECOMMENDATION

 

That pursuant to Section 80(1) (a) of the Environmental Planning and Assessment Act, 1979, as amended, the Council grant consent to Development Application D278/08 for alterations and additions to an existing residential flat building to convert 3 flats into 2 and construction of a detached third unit over a basement car park and alterations to the existing pool on 19 Glenview Street, Greenwich at 19 Glenview Street, Greenwich subject to the following conditions.

 

1.         (20) That the development be strictly in accordance with drawing numbers:

            0747/DA01 to DA05 issue K dated 12/5/09 by Cant Dibden Pty Ltd.

            2008-007 SW1 dated Aug 08 by Water Design Civil Engineers.

            except as amended by the following conditions.

 

2.         The masonry enclosure for the bins be reduced in height and the overhead pedestrian gate structure be deleted. Amended plans be submitted prior to the issue of construction certificate.

 

3.         The earthwork be moulded to the existing ground line along the south western boundary and an alternative be considered to the rigid high fence, a more transparent fence at a reduced height similar to that proposed for the vehicle gates and pedestrian gate. Amended plans be submitted prior to the issue of construction certificate.

 

4.         (1) The submission of a Construction Certificate and its issue by Council or Private Certifier PRIOR TO CONSTRUCTION WORK commencing.

 

5.         (2) All building works are required to be carried out in accordance with the provisions of the Building Code of Australia.

 

6.         (11) The approved plans must be submitted to a Sydney Water Check agent or Customer Centre to determine whether the development will affect Sydney Water’s sewer and water mains, stormwater drains and/or easements, and if further requirements need to be met.  Plans will be appropriately stamped.  For Quick Check agent details please refer to the web site www.sydneywater.com.au see Your Business then Building & Developing then Building & Renovating or telephone 13 20 92.

 

            The consent authority or a private accredited certifier must:-

 

·           Ensure that a Quick Check agent/Sydney Water has appropriately stamped the plans before the issue of any Construction Certificate.

 

7.         (12) Approval is subject to the condition that the builder or person who does the residential building work complies with the applicable requirements of Part 6 of the Home Building Act 1989 whereby a person must not contract to do any residential building work unless a contract of insurance that complies with this Act is in force in relation to the proposed work.  It is the responsibility of the builder or person who is to do the work to satisfy Council or the PCA that they have complied with the applicable requirements of Part 6.  Council as the PCA will not release the Construction Certificate until evidence of Home Owners Warranty Insurance or an owner builder permit is submitted. THE ABOVE CONDITION DOES NOT APPLY TO COMMERCIAL/INDUSTRIAL CONSTRUCTION, OWNER BUILDER WORKS LESS THAN $5000 OR CONSTRUCTION WORKS LESS THAN $12000.

 

8.         (17)  An Occupation Certificate being obtained from the Principal Certifying Authority before the occupation of the building.

 

9.         (35) All demolition, building construction work, including earthworks, deliveries of building materials to and from the site to be restricted to the following hours:-

 

Monday to Friday (inclusive)                     7.00am to 5.30pm

Saturday                                                   7.00am to 4.00pm

No work to be carried out on Sundays or any public holidays.

 

10.       (36) Stockpiles of topsoil, sand, aggregate, spoil or other material capable of being moved by water to be stored clear of any drainage line, easement, natural watercourse, footpath, kerb or roadside.

 

11.       (37) The development shall be conducted in such a manner so as not to interfere with the amenity of the neighbourhood in respect of noise, vibration, smell, dust, waste water, waste products or otherwise.

 

12.       (48) Depositing or storage of builder's materials on the footpath or roadways within the Municipality without first obtaining approval of Council is PROHIBITED.

 

Separate approval must be obtained from Council's Works and Urban Services Department PRIOR TO THE PLACEMENT of any building waste container ("Skip") in a public place.

 

13.       (49) Prior to the commencement of any construction work associated with the development, the Applicant shall erect a sign(s) at the construction site and in a prominent position at the site boundary where the sign can be viewed from the nearest public place.  The sign(s) shall indicate:

 

a)         the name, address and telephone number of the Principal Certifying Authority;

b)         the name of the person in charge of the construction site and telephone number at which that person may be contacted outside working hours; and

c)         a statement that unauthorised entry to the construction site is prohibited.

 

The signs shall be maintained for the duration of construction works.

 

14.       (50) The cleaning out of ready-mix concrete trucks, wheelbarrows and the like into Council's gutter is PROHIBITED.

 

15.       (52) The swimming pool being surrounded by a fence:-

 

a) That forms a barrier between the swimming pool; and

 

i)   any residential building or movable dwelling situated on the premises; and

ii)   any place (whether public or private) adjacent to or adjoining the premises; and

 

b) That is designed, constructed and installed in accordance with the standards as prescribed by the Regulations under the Swimming Pool Act, 1992, and the Australian Standard AS1926.1 – 1993, “Swimming Pool Safety – Part 1: Fencing for Swimming Pools”.

 

      SUCH FENCE IS TO BE COMPLETED BEFORE THE FILLING OF THE SWIMMING POOL.

 

16.       (53) The filter and pump being located in a position where it will create no noise nuisance at any time or, alternatively, being enclosed in an approved soundproof enclosure.  If noise generated as a result of the development results in an offensive noise Council, may prohibit the use of the unit, under the provisions of the Protection of the Environment Operations Act 1997.

 

17.       (54) In accordance with the requirements of the Swimming Pools Act 1992 and Regulations there under a warning notice is to be displayed in a prominent position in the immediate vicinity of the swimming pool at all times.

 

The notice must be in accordance with the standards of the Australian Resuscitation Council for instructional posters and resuscitation techniques and must contain a warning "YOUNG CHILDREN SHOULD BE SUPERVISED WHEN USING THIS POOL".

 

18.       (55) Fibrecrete Swimming Pool Shell being constructed in accordance with AS.2783-1985 "Concrete Swimming Pool Code, AS 3600-1988 - "Concrete Structure" and "AW1 Fibresteel Technical Manual, November 1981".

 

19.       (138) All overflow water and drainage including backwash from filter washing from the swimming pool must be directed to the sewer in accordance with Sydney Water's requirements.

 

20.       Standard Condition (56) Where Lane Cove Council is appointed as the Principal Certifying Authority, it will be necessary to book an inspection for each of the following stages during the construction process.  Forty eight (48) hours notice must be given prior to the inspection being required:-

 

a)         The pier holes/pads before filling with concrete

b)         All reinforcement prior to filling with concrete

c)         The dampcourse level, ant capping, anchorage and floor framing before the floor material is laid

d)         Framework including roof and floor members when completed and prior to covering.

e)         Installation of steel beams and columns prior to covering

f)          Waterproofing of wet areas

g)         new pool walls reinforcement prior to placement of concrete

h)         The pool safety fence and the provision of the resuscitation poster prior to filling of the pool with water

i)          Stormwater drainage lines prior to backfilling

j)          Completion.

 

21.       Standard Condition (57) Structural Engineer's details being submitted PRIOR TO ISSUE OF CONSTRUCTION CERTIFICATE for the following:-

 

a)         underpinning;

b)         retaining walls;

c)         footings;

d)         reinforced concrete work;

e)         structural steelwork;

f)          upper level floor framing;

g)         shoring details;

h)         pool structure.

 

22.       (58) Structural Engineer's Certificate being submitted certifying that existing building is capable of carrying the additional loads.  Such Certificate being submitted PRIOR TO THE ISSUE OF A CONSTRUCTION CERTIFICATE.

 

23.       (61)  All timbers complying with Timber Framing Code AS 1684-79.

 

24.       Standard Condition (64) A check survey certificate is to be submitted at the completion of:-

 

a          Dampcourse level;

b          The establishment of the basement roof level;

c          The roof framing; and

d          The completion of works.

 

Note:    All levels are to relate to the reduced levels as noted on the approved architectural plans and should be cross-referenced to Australian Height Datum.

 

25.       (65) Noise from domestic air conditioners is not to be audible in any adjoining dwelling between the hours of 10:00pm and 7:00am on weekdays or between the hours of 10:00pm and 8:00am on weekends and public holidays. 

 

If the noise emitted from the air conditioning unit results in offensive noise, Council may prohibit the use of the unit, under the provisions of the Protection of the Environment Operations Act 1997.

 

26.       (66) The removal, handling and disposal of asbestos from building sites being carried out in accordance with the requirements of the Construction Safety Act and the Regulations details of the method of removal to be submitted PRIOR TO COMMENCING ANY DEMOLITION WORKS.

 

27.       (67) 

(a)        The use of mechanical rock pick machines on building sites is prohibited due to the potential for damage to adjoining properties.

 

(b)        Notwithstanding the prohibition under condition (a), consideration will be given to the use of rock pick machines and may be approved by Council subject to:-

 

(1)        A Geotechnical Engineer's Report that indicates that the rock pick machine can be used without causing damage to the adjoining properties.

 

(2)        The report details the procedure to be followed in the use of the rock pick machine and all precautions to be taken to ensure damage does not occur to adjoining properties.

 

(3)        With the permission of the adjoining owners and occupiers comprehensive internal and external photographs are to be taken of the adjoining premises for evidence of any cracking and the general state of the premises PRIOR TO ANY WORK COMMENCING.  Where approval of the owners/occupiers is refused they be advised of their possible diminished ability to seek damages (if any) from the developers and where such permission is still refused Council may exercise its discretion to grant approval.

 

(4)        The Geotechnical Engineer supervises the work and the work has been carried out in terms of the procedure laid down.

 

            COMPLIANCE WITH THE REQUIREMENTS OF THIS CONDITION MUST BE SATISFIED PRIOR TO THE ISSUE OF THE CONSTRUCTION      CERTIFICATE.

 

28.       (70) Protection of the dwelling against subterranean termites must be carried out in accordance with AS.3660.

 

 

29.       (78) The site being properly fenced to prevent access of unauthorised persons outside of working hours.

 

30.       (79) Compliance with Australian Standard 2601 - The Demolition of Structures.

 

31.       All waste generated on site shall be disposed off in accordance with the submitted Waste Management Plan.

 

32.       (142) BASIX - Compliance with all the conditions of the BASIX Certificate lodged with Council as part of this application.

 

Building Conditions

33.       Disabled access is to be provided in accordance with Clause D3.2 of the Building Code of Australia.

 

34.       Submit BCA fire safety report from a suitably qualified fire safety engineer (or other person with appropriate qualifications and experience) detailing all non-compliances with the current requirements of Section C, D, E, G and I of the Building Code of Australia. The report will need to rationalise the non-compliance and clearly recommend in the conclusion all works required to be completed. The report will also need to provide a schedule of existing and proposed essential fire safety measures PRIOR TO THE ISSUE OF CONSTRUCTION CERTIFICATE.

 

Traffic Conditions

35.       The parking spaces shall be linemarked.

 

36.       The parking spaces shall be 2.5m wide with the end spaces to be 3.1m wide where it is adjacent to a solid end wall.

 

 

Rural Fire Service Conditions

37.       Asset Protection Zone

 

            The intend of measures is to minimize the risk of bush fire attack and provide protection for emergency services personnel, residents and others assisting fire fighting activities.

           

            At the commencement of the building works and in perpetuity the entire property shall be managed as an ‘Inner Protection Area’ (IPA) as outlined within Planning for Bushfire Protection 2006 and Service’s document ‘Standards for asset protection zones’.

 

38.       Design and Construction

 

            New construction is to comply with Appendix 3 – Site Bushfire Attack Assessment of Planning for Bushfire Protection 2006. In this regard the following design standards for construction are to be incorporated into the development.

 

a)   New construction for the third flat shall comply with Australian Standard AS3959-1999 ‘Construction of buildings in bushfire prone areas’ Level 2.

 

b)   Roofing of the proposed third flat shall be gutter less or have leafless guttering and valleys to prevent the build up of flammable material. Any materials used shall have a Flammability Index no greater than 5.

 

 

c)   New construction for the proposed new decking shall comply with Australian Standard AS3959-1999 ‘Construction of buildings in Bushfire prone area’ Level 1.

 

Tree Preservation Conditions

39.       (300)  A Tree Preservation Order applies in the Lane Cove local government area. The order prohibits the cutting or removal of any tree except with the consent of Council, which must be strictly and fully complied with, and the penalty for contravention of this order is up to One million one hundred thousand ($1,100,000).  The co-operation of all residents is sought in the preservation of the bushland character of the Municipality.  All enquiries concerning the Tree Preservation Order must be made at the Council Chambers, Lane Cove.

 

40.       (302)  The protection on site, without damage, of all existing trees. Irrespective of this consent permission from Council must be obtained for the removal or pruning of any trees, including the cutting of any tree roots greater than 40 mm in diameter.

 

41.       (303)  There must be no stockpiling of topsoil, sand, aggregate, spoil or any other construction material or building rubbish on any nature strip, footpath, road or public open space park or reserve.

 

42.       (308)  Rubbish must be stored in a sealed locked container / cage.  Any building rubbish that is not contained must be cleaned up immediately, including the immediate worksite, surrounding area and/or public open space.

 

43.       (344)  All tree protection measures as specified in the Predevelopment Tree Assessment Report prepared by Ian English on 6th September 2008 must be in place and approved by Council’s Tree Assessment Officer PRIOR TO THE ISSUE OF THE CONSTRUCTION CERTIFICATE, and must be maintained for the duration of works on the site.

 

44.       (366)  There must be no soil disturbance within the tree protection area, including any activities associated with the construction other than topdressing on completion of the landscaping works to a maximum of 50mm, within the approved tree protection zones of the trees shown on the approved plan to be retained.  All activity within the Tree Protection Area must be undertaken with hand tools.

 

45.       (383)  The Applicant must ensure that all landscaping is completed to a professional standard, free of any hazards or unnecessary maintenance problems and that all plants are consistent with NATSPEC specifications.

 

General Engineering Conditions

46.       (A1) Design and Construction Standards:  All engineering plans and work shall be carried out in accordance with Council’s standards and relevant development control plans except as amended by other conditions.

 

47.       (A2) Materials on Roads and Footpaths: Where the applicant requires the use of council land for placement of building waste, skips or storing materials a “Building waste containers or materials in a public place” application form is to be lodged. Council land is not to be occupied or used for storage until such application is approved. 

 

48.       (A3) Works on Council Property: Separate application shall be made to Council's urban services division for approval to complete, any associated works on Council property.  This shall include vehicular crossings, footpaths, drainage works, kerb and guttering, brick paving, restorations and any miscellaneous works. Applications shall be submitted prior to the start of any works on Council property.

 

49.       (A4) Permit to Stand Plant: Where the applicant requires the use of construction plant on the public road reservation, an “Application for Standing Plant Permit” shall be made to Council. Applications shall be submitted and approved prior to the start of any related works. Note: allow 2 working days for approval.

 

50.       (A5) Restoration: Public areas must be maintained in a safe condition at all times. Restoration of disturbed Council land is the responsibility of the applicant. All costs associated with restoration of public land will be borne by the applicant.

 

51.       (A6) Public Utility Relocation: If any public services are to be adjusted, as a result of the development, the applicant is to arrange with the relevant public utility authority the alteration or removal of those affected services. All costs associated with the relocation or removal of services shall be borne by the applicant.

 

52.       (A7) Pedestrian Access Maintained: Pedestrian access, including disabled and pram access, is to be maintained throughout the course of the construction as per AS-1742.3, ’Part 3 - Traffic control devices for works on roads’.

 

53.       (A8) Council Drainage Infrastructure: The proposed construction shall not encroach onto any existing Council stormwater line or drainage easement. If a Council stormwater line is located on the property during construction, Council is to be immediately notified. Where necessary the stormwater line is to be relocated to be clear of the proposed building works. All costs associated with the relocation of the stormwater line are to be borne by the applicant

 

54.       (A9) Services Prior to any excavation works, the location and depth of all services must be ascertained. All costs associated with adjustment of the public utility will be borne by the applicant.

 

 

55.       (V3) Car parking: All parking and associated facilities are to be designed and constructed in accordance with AS 2890 Series.

 

56.       (R1) Rainwater Reuse Tanks: The proposed rainwater tank is to be installed in accordance with Council’s rainwater tank policy and relevant Australian standards.

Note:

§ Rainwater draining to the reuse tank is to drain from the roof surfaces only. No “on - ground” surfaces are to drain to the reuse tank.  “On - ground” surfaces are to drain via a separate system.

§ Mosquito protection & first flush device shall be fitted to the reuse tank.

§ The overflow from the rainwater reuse tank is to drain by gravity to the receiving system.

 

57.       (S1) Stormwater requirement Stormwater runoff from all impervious areas shall be collected and disposed of using the following mechanism

 

·     All impervious areas are to drain to the street system.  

·     Environmental pollution control pit is to be installed just prior to the connection to the street system

 

The design and construction of the drainage system is to fully comply with, AS-3500 and Council's DCP-Stormwater management. The design shall ensure that the development, either during construction or upon completion, does not impede or divert natural surface water so as to have an adverse impact upon adjoining properties.

 

Engineering Conditions To Be Complied With Prior To Construction Certificate

                         

58.       (D3) Drainage Construction: The stormwater drainage on the site is to be constructed generally in accordance with plan 2008-007 SW1 prepared by Water design civil engineers dated August 2008.

 

Certification by a suitably qualified engineer of the above plans is to be submitted to the Principle Certifying Authority stating that the design fully complies with, AS-3500 and Council's DCP-Stormwater management. The plans and certification shall be submitted prior to the issue of the Construction Certificate.

 

The Principal Certifying Authority is to satisfy themselves of the adequacy of the certified plans for the purposes of construction. They are to determine what details, if any, are to be added to the construction certificate plans, in order for the issue of the construction certificate.

 

59.       (B1) Council infrastructure damage bond: The applicant shall lodge with Council a $1000 cash bond or bank guarantee. The bond is to cover the repair of damage to Council's roads, footpaths, kerb and gutter, drainage or other assets as a result of the development. The bond will be released upon issuing of the occupational certificate. If Council determines that damage has occurred as a result of the development, the applicant will be required to repair the damage. Repairs are to be carried out within 90days from the notice. All repairs are to be carried in accordance with council’s requirements. The full bond will be retained if council’s requirements are not satisfied. Lodgement of this bond is required prior to the issue of the Construction Certificate.

 

60.       (C1) Erosion and Sediment Control Plan: An Erosion and Sediment Control Plan (ESCP) shall be prepared by a suitably qualified consultant in accordance with the guidelines set out in the manual “Managing Urban Stormwater, Soils and Construction Fourth Edition 2004 Volume 1’’ prepared by LANDCOM. The plan is to be submitted to the principal certifying authority to prior to the issue of the construction certificate.

61.       (V1) Proposed Vehicular Crossing: The proposed Vehicular crossing shall be constructed to the specifications and levels issued by Council. An INSERT CROSSING APPLICATION TYPE ‘Construction of residential Vehicular Footpath Crossing’ application shall be submitted to Council prior to the issue of the construction certificate. All works associated with the construction of the crossing shall be completed prior to the issue of the occupational certificate. 

 

62.       (K4) Council inspection requirements: The following items are to be inspected 

 

·     Connection to council pit  

 

This item is to be inspected prior to the pouring of any concrete (formwork) and on completion of the construction. An Inspection fee of $165 is to be paid prior to the issue of the construction certificate.        

 

Engineering Condition to Be Complied With Prior to Commencement of Construction

63.       (C2) Erosion and sediment control: The applicant shall install appropriate sediment control devices prior to the start of any works on the site. The devices are to be installed in accordance with the approved plan satisfying condition ‘(C1) Erosion and sediment control plan’. The devices shall be maintained during the construction period and replaced when necessary.

 

Engineering Conditions to Be Complied With Prior to Occupation Certificate

64.       (V3) Redundant Gutter Crossing:  All redundant gutter and footpath crossings shall be removed and the kerb, gutter and footpath reinstated to the satisfaction of Council’s Urban Services Division. These works shall be carried out prior to the issue of the occupation certificate.

 

65.       (M2) Certificate of Satisfactory Completion:  Certificates from a registered and licensed Plumber or a suitably qualified Engineer must be obtained for the following matters. The plumber is to provide a copy of their registration papers with the certificate. The relevant certificates are to be submitted to the principal certifying authority prior to issue of the occupation certificate.

 

·     Confirming that the site drainage system has been constructed in accordance with the relevant Australian Standards and Council’s DCP-Stormwater management. 

 

 

Michael Mason

Executive Manager

Environmental Services Division

 

ATTACHMENTS:

AT‑1 View

Site Location Plan

2 Pages

 

AT‑2 View

Neighbour Notification Plan

1 Page

 

AT‑3 View

Heritage Report from Graham Brookes & Associates 28-11-08

7 Pages

 

AT‑4 View

Heritage Report from Graeme Drew & Associates 27/2/09

6 Pages

 

AT‑5 View

Amended Heritage Report from Graeme Drew & Associates 4/6/09

3 Pages

 

 

 


Inspection Committee Meeting 5 September 2009

 

Environmental Services Division Report No. 86

 

 

 

 

 

Reference:    Environmental Services Division Report No. 86

Subject:          34 Chisholm Street, Greenwich

Planning and Building Committee at its meeting on 17 August 2009 resolved that the matter be referred to the next Inspection Committee Meeting to held on the 05 September 2009.   

Record No:    DA08/264-01 - 9296/09

Author(s):       Andrew Thomas 

 

 

Property:                     34 Chisholm Street, Greenwich

 

DA No:                         D 264/08A – Section 96 Modification

 

Date Lodged:              8.5.09 – revised plans submitted 19.6.09

 

Cost of Work:              $850,000:  original development application

 

Owner             :                       D Weston & T Condon

                                                

Author:                         Andrew Thomas

 

 

DESCRIPTION OF PROPOSAL TO APPEAR ON DETERMINATION

Section 96 modification seeking to modify development consent 08/264 and delete conditions to allow a roof terrace and associated changes.

ZONE

Residential 2 (a2)

IS THE PROPOSAL PERMISSIBLE WITHIN THE ZONE?

Yes

IS THE PROPERTY A HERITAGE ITEM?

Yes, and in addition the street tree in front of the site is a contributory item to the street trees that form a landscape heritage item under the LEP

IS THE PROPERTY WITHIN A CONSERVATION AREA?

No

DOES DCP 1- BUSHLAND APPLY TO THE PROPERTY?

No

BCA CLASSIFICATION

Class 1a & 10b

STOP THE CLOCK USED

No

NOTIFICATION

Neighbours:                             22-38 and 23-31 Chisholm Street; 86A Greenwich Road; 35-41 Vista Street

Ward Councillors:                   East

Progress Association:            Greenwich Community Association

Other Interest Groups:            Lane Cove Historical Society

 

Public Notification:  The proposal was advertised on two occasions in the North Shore Times inviting comments from the public over a period of 30 days, and a notice was placed at the front of the site to coincide with the 30 day notification period

 


REASON FOR REFERRAL:

 

This amended application is referred to the Planning and Building Committee because it proposes a roof terrace.  A roof terrace was approved by the Land and Environment Court of NSW (the Court) in December 2008 for a development at 12 Chisholm Street, Greenwich. The issues in that application and this are similar for the following reasons:

 

·     no objections were submitted to the roof terrace proposed for either site;

·     the roof terrace in each development was/is proposed to be open;

·     the views from each site are similar; and

·     the solicitors for the respective property owners are the same.

 

A significant difference between the roof terrace proposed for 34 Chisholm Street  is that with an area of about 29m2 it is almost twice the area of that approved by the Court at 12 Chisholm Street. 

 

In April 2008, Council’s Planning and Building Committee resolved to approve development application D302/07 for alterations and additions to the dwelling house at 12 Chisholm Street, Greenwich subject to the deletion of a roof terrace.

 

In July 2008 the same Council Committee resolved to refer to Council, a section 96 amendment to the development consent granted in April 2008, seeking to retain the roof terrace.  In August 2008 Council resolved to refuse the amendment.  In December 2008 the Land and Environment Court upheld the applicant’s appeal to Council’s decision on the following grounds:-

 

·     Council’s current code is not an adopted DCP and in any case is silent on roof terraces;

·     there have been other roof terraces in Greenwich and elsewhere in Lane Cove;

·     it is only Council’s practice to oppose roof terraces;

·     the potential impacts would be minimal and acceptable, an opinion that apparently all neighbours have for the application;

·     residential amenity would remain acceptable;

·     whilst the width limit would be contravened that is Council’s only control such that roof terraces are not constrained in size or length; and

·     the proposal was not setting a precedent because of the other roof terraces in the area.  

 

EXECUTIVE SUMMARY:

 

·     The site is a heritage item under the Lane Cove LEP 1987.  Council’s Heritage Adviser did  not raise issue with the original proposal for this site which included a roof terrace.  The existing dwelling house was constructed in 1905 and is a single storey weather board dwelling house.

 

·     Under delegated authority, development application D264/08 for alterations and additions to the existing dwelling house, including its partial demolition; alterations and additions, a swimming pool and a front fence was approved on 8 April 2009.

 

·     The roof terrace aspect of the proposal was referred to GMU Planning Consultants for comment. GMU concludes that the roof terrace would have substantial and unreasonable privacy and noise impacts on adjoining neighbours.

 

·     Although development application D264/08 originally proposed a roof terrace Council staff advised the applicants that this feature would not be supported and it was removed from amended (and subsequently approved) plans submitted in March 2009.

 

·     The current proposal is a section 96 modification seeking mainly to amend the development consent to reinstate the roof terrace.  The roof terrace of 29.3m2 would be accessed by exterior stairs.  The roof terrace is to provide a private area of open space for the occupants.  The application states that the main entertainment area would be located at first floor level.

 

·     Revised plans submitted on 19 June 2009 have reduced the height of a planter box along the south side of the proposed roof terrace by 800mm so as to, at least, maintain the same degree of solar access over the adjoining property at 36 Chisholm Street as was approved under the original development application.  A balustrade has been added for safety reasons. Due to the scale and nature of the proposed change renotification of the proposal was not required.

 

·     As the proposed roof terrace would have dimensions of 10.8m x 2.5m and an area of 29.3m2  it would not comply with the intent of Council’s Code, which seeks to minimise intrusion on visual and aural privacy of neighbouring and nearby properties from elevated decks.

 

·     Although no submissions have been received, Council has a practice of not supporting roof terraces because they have the potential to reduce the residential amenity of adjoining and adjacent properties due to a loss of privacy caused by overlooking and noise.

 

·     The amended proposal is not supported for the following reasons:-

 

- whilst Council’s current lack of controls indicates that the adverse impacts of roof terraces was not anticipated, the Draft Comprehensive DCP that is currently on exhibition would prohibit them; and

 

- the locality is characterized by small and narrow residential lots where there is likely to be continuing pressure to obtain harbour and city views from larger and taller dwelling houses which would be in close proximity to, and could have major amenity impacts on, each other.

 

SITE:

 

The rectangular lot has a frontage of just over 13m to Chisholm Street, a rear secondary frontage of the same width to Vista Lane and an area of about 459m².

 

This site is located on the east side of Chisholm Street, south of it’s junction with Edwin Street.  The site falls about 3.5m from its front to it’s rear boundary and has a slight cross fall from its north side boundary to it’s opposite south side boundary.

 

Existing development on the site consists of a single storey weatherboard dwelling house with a metal pitched roof and an undercroft area at the rear.  The original dwelling house was constructed in 1905 and has later fibro additions attached on its north elevation.  The site is a heritage item under the Lane Cove LEP 1987.  There are two separate detached garages on the north side of the site: the one at the front is accessed from Chisholm Street, and the one at the rear is accessed from Vista Lane.

 

The site has a small front yard and the rear yard is mainly grass with some rock outcrops.  The site has no trees.  In front of the site on Council’s verge is a mature Eucalypt; this tree is one of a number of such trees which collectively form a landscape heritage item under the Lane Cove LEP1987.

 

Adjoining development to the north, at 32 Chisholm Street, consists of a part 1 and part 3 storey dwelling house.  To the south, at 36 Chisholm Street, is a part 1 and part 2 storey weatherboard dwelling house of similar proportions to the dwelling house on the subject site.  At the rear of the site, on the opposite side of Vista Lane, is part 1 and part 2 storey dwelling houses.

 

The locality is residential and contains a mix of both older single storey, and contemporary 2 and 3 storey dwelling houses.   Site Location Plan and Elevations (AT1) and Neighbour Notification Plan (AT2)  are attached.

 

PROPOSAL:

 

The proposal is for the amendment of conditions 1 (the list of approved plans) and 6 (the confirmation of maximum height) to enable the construction of a rectangular roof terrace.

 

The proposed roof terrace would be located above the rear two storey portion of the approved addition, part of which would be situated above an approved garage. It would have general dimensions of 10.8m x 2.5m, plus a small section on the north side with dimensions of 2.3m x 1m and a total area of 29.3m2, or 5.4m2 less than the area of the terrace proposed in the original development application.  There would be a 700mm wide planter box along its south side and a 1m high glass balustrade along both its north and south sides.

 

The terrace would be accessed by an exterior set of stairs located at the front west side of the rear addition that would lead up to a landing located 700mm below the level of the terrace on its south side.

 

The original plans submitted under this amendment have been further amended by an 800mm reduction in the height of the planter box to only 200mm so as to at least maintain the level of solar access over the adjoining property to the south, at 36 Chisholm Street, provided by the original development application.  A glass balustrade is also proposed along the terrace’s north and south sides to satisfy the safety requirements under the Building Code of Australia.

 

The revised proposal would reduce the overall height of the approved development by 200mm.  Minor related amendments are proposed to the level of the ground floor hall; the height of three south facing ground floor level windows; a first floor level landing and a north facing skillion roof.  However, as these modifications would appear to be linked to the proposed roof top terrace they have not been developed in this report.  Consequently if Council were not to support the proposal neither of the two conditions (1 or 6) would need to be amended.

 

A model of the approved development, including the proposed roof terrace, has been provided.

 

PREVIOUS APPROVALS/HISTORY:

 

Only that relating to D264/08 as previously stated.

 

PROPOSAL DATA/POLICY COMPLIANCE:

 

DWELLING HOUSE

 

Site Area (459.2m2)

 

PROPOSED

CODE

COMPLIES

Overall Height (m)       (max)

8.95m

9.5m

Yes

Ceiling Height (m)       (max)

7.98m

7.0m

No, but 200mm less than approved

Deck/Balcony width  (max)

10.8m x 2.5m

3m (if elevated by >1m)

No

 

All of the other provisions of Council’s Code for Dwelling Houses, etc. August 2002 (the Code) remain unchanged.


REFERRALS:

 

Referral of the s96 application has not been required.

 

Heritage Comments in Relation to Original DA

 

Council’s Heritage Advisor raised no objection on heritage grounds to the original development application which initially proposed a roof terrace.

 

Urban Design Comments in Relation to Original DA

 

The original application was also referred to GMU Planning Consultants for comment in relation to urban design issues regarding the proposed roof terrace.  GMU is the company Council has employed to prepare the Comprehensive DCP.

 

GMU have advised that:-

 

·     Council’s current lack of controls for roof terraces does not imply support for such terraces, rather it indicates that such outcomes were not anticipated;

·     the area in which the subject site is located is characterized by narrow lots with tightly constrained dwelling houses and where large dwelling houses are replacing the traditional small cottages;

·     some sites in this area would benefit from harbour and city views from higher levels which could result in pressure for roof terraces and taller dwelling houses to capture these views; however narrow lots and small lot areas would also mean that these dwelling houses would be in close proximity and could have major amenity impacts on each other; and

·     the useable area of the roof terrace proposed in this s96 application (ie of 29.3m2) would be greater than the useable area approved for the roof terrace at 12 Chisholm Street (ie of 15.75m2).

 

 A copy of GMU’s advice on the proposed roof terrace is attached at AT3. 

 

ASSESSMENT

 

SECTION 96 OF THE ENVIRONMENTAL PLANNING AND ASSESSMENT ACT 1979 (the Act)

 

The proposed development has been assessed in relation to the relevant matters under s96 (2) of the Act as discussed below.

 

S.96 (2) (a) Is the Modified Development Substantially the Same?

 

The original development application included a roof terrace 5.4m2 greater in area, and in the same location, as proposed in this amended application.

 

Revised plans were submitted to that original proposal which removed the roof terrace.  These revised plans were approved in April of this year.

 

As this amendment to the development consent proposes a roof terrace it could be argued that it is not substantially the same development.  However, the Land and Environment Court Commissioner who heard the appeal in relation to Council’s refusal of a roof terrace at 12 Chisholm Street did not agree with Council’s opinion that a proposed roof terrace was not substantially the same development.  Based on the opinion taken previously for a similar amendment of a development consent by a Commissioner this amendment to the original development consent is for substantially the same development.

 

S.96 (2) (b) Consultation with the Relevant Minister, Public Authority or Approval Body

 

There is no requirement to consult with any Minister, public authority or approval body.

 

S.96 (2) (c) Notification of Application to Modify Consent

 

The proposal was advertised in accordance with Council’s policy and the relevant regulations.

 

S.96 (2) (d) Consideration of Submissions

 

No submissions have been received.

 

S.96 (3) Assessment of the Proposed Modification

 

An assessment of the proposal is required in relation to s.79C of the Act.  This assessment follows.

 

SECTION 79C OF THE ENVIRONMENTAL PLANNING AND ASSESSMENT ACT 1979 (the Act)

 

S79C (1) (a):  Relevant environmental planning instruments, development control plans and regulations.

 

Lane Cove Local Environmental Plan 1987 (the LEP)

 

(i)    Zone

 

The proposed works are permissible in the Residential 2(a2) Zone under the LEP.

 

(ii)   Heritage

 

Both the subject site, and the street tree in front of the site, are heritage items of local significance under the LEP.  Council’s Heritage Advisor reviewed the original development application which initially included a roof terrace and raised no objection on heritage grounds.  A condition recommended by Council’s Tree Assessment Officer was included in the development consent to ensure the heritage street tree would be protected.  The proposal does not raise any additional heritage issues.

 

Draft Lane Cove Local Environmental Plan 2008 (the DLEP)

 

The proposed works are also permissible in the R2 Low Density Residential zone proposed for the subject site under the DLEP.  There are no additional provisions that need to be considered with respect to the DLEP.

 

Other Planning Instruments

 

SEPP 55:  Remediation of Land

 

This Policy was addressed in the assessment of the original development.

 

Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (the SREP)

 

The site is within the Harbour Catchment of this SREP.  In relation to those Matters for consideration set out under cl 20-27 of Division 2 of the SREP, the original development was consistent with relevant clauses.  The proposal would also be consistent with those same relevant clauses.

 

Sydney Harbour Foreshores and Waterways Area Development Control Plan 2005 (the DCP 2005)

 

The subject site is located within the foreshore area identified on the Foreshores and Waterways Area Map contained within the SREP and as such is subject to the DCP that complements the SREP. 

 

In the assessment of the original development application the proposal was consistent with the relevant parts of the DCP.  The revised proposal would also be consistent with those same parts.

 

Applicable Regulation

 

Relevant matters in relation to the Environmental Planning and Assessment Regulation 2000 and Australian Standard AS2601-2001 were addressed in the assessment of the original development application and condition 42 (79) was included in the consent to address this requirement.  The revised proposal does not require any further assessment in relation to these matters.

 

Variations to Council’s Codes/PolicIes

 

The preceding policy assessment table identifies those controls under Council’s current Code For Dwelling Houses, August 2002 (the Code) that the revised proposal would not comply with.  Each departure is discussed below.

 

(i)         Ceiling Height

 

The proposed reduction to the overall height of 200mm would also result in a consequent reduction in ceiling height.  Whilst this would exceed the maximum ceiling height of 7m allowed under the Code, it would be below that assessed as reasonable and that was approved in the original development proposal.

 

(ii)        Width of the Roof Terrace

 

Where privacy is an issue, the Dwelling House Code restricts the width of elevated decks/balconies more than 1m above the natural ground level to 3m of width.  The 3m width was adopted by Council as a dimension whereby usable outdoor space was provided to the resident whilst reducing the loss of visual and aural privacy to neighbours.

 

Usually the width of a deck would be measured from the room providing access to it.  In this s96 application, access to the proposed roof terrace would be provided by exterior stairs.  With a maximum dimension of 10.8m the proposed roof terrace would exceed that allowed under the Code.

 

Due to the potential impact on aural and visual privacy caused by of such elevated terraces/ decks the Planning and Building Committee and Council have had a practice of rejecting proposals for roof terraces above the upper level of dwelling houses.  In the Draft Comprehensive Development Control plan, which is currently on exhibition, roof terraces are prohibited above the upper storey of dwelling houses.  In the interim, the Planning and Building Committee may wish to suggest to Council that a prohibition of roof terraces be formally adopted as a Policy of Council.  Adopting a Policy would assist in negating the “precedent” that the applicant is citing in support of the roof terrace.

 

S79C(1)(b) The Impacts of the Development

 

Despite the applicant’s statement that the purpose of the proposed roof terrace would be to provide a private area of open space, with a total useable area of 29.3m2 the proposed roof terrace could be used for entertainment purposes even though this would be limited because it would only be accessible by a set of exterior stairs, not off an adjoining room.

 

In addition the proposed roof terrace has the potential to overlook each adjoining and some adjacent properties.  Also, on would anticipate the need/ desire to permanent or temporary shade structures on the roof top terrace, which would add further to the appearance of bulk and scale of the dwelling house.

 

Consequently the proposal has the potential to adversely affect the amenity of nearby residential properties in terms of both acoustic and visual privacy.

 

S79C(1)(c) The Suitability of the Site for the Development

 

Although the proposed roof terrace would maintain the residential use of the site, its use could have an adverse impact on nearby residential properties.  Consequently the site is unsuitable for a roof terrace.

 

S79C(1)(d) Submissions

 

No submissions have been received to Council’s notification of the proposal.

 

S79C(1)(e) The Public Interest

 

The proposed roof terrace has the potential both to overlook and affect the acoustic privacy of both adjoining and some adjacent properties that could result in a loss of privacy. In addition Council’s draft DCP would prohibit roof terraces like the example proposed.  Consequently the proposal would not be in the public interest.

 

CONCLUSION

 

The s96 application proposes a roof terrace accessed by exterior stairs.  The proposal has been assessed against the relevant environmental planning instruments, Council’s Code for Dwelling Houses (the Code) and Council’s adopted Draft Comprehensive DCP (the draft DCP). The proposal would exceed the intent of the Code which seeks to limit the width of an elevated deck, balcony or terrace to 3m as it would have a maximum dimension of 10.8m. This is to avoid aural and visual privacy issues for neighbouring and nearby properties.  In addition the draft DCP would prohibit roof terraces similar to the example proposed.

 

It is considered that the proposed roof terrace has the potential to overlook both adjoining and some adjacent properties and to affect the acoustic privacy of the occupants.  Consequently although no submissions have been received to the proposal, the residential amenity of nearby residents could be adversely affected.   

 

In 2002 Council approved D212/02 which included a roof terrace at 41 Chisholm Street. By contrast in August 2008 Council refused a roof terrace that was proposed as an amendment to the development consent for alterations and additions at 12 Chisholm Street, Greenwich proposed under D302/07 and approved on 29 April 2008. In relation to the latter development, in December 2008 the Land and Environment Court of NSW upheld the applicant’s subsequent appeal against Council’s decision.  Although the current Code is silent in relation to roof terraces, they would be prohibited under Council’s draft DCP which is currently on exhibition.

 

Matters in relation to s96 and s79C of the Act have been assessed and the proposal for a roof terrace is not satisfactory.  Therefore the s96 application is not supported.

 

 

 

 

 

RECOMMENDATION

 

Pursuant to the provisions of Section 96 of the Environmental Planning and Assessment Act, 1979, as amended, the development consent D264/08 granted on 8 April 2009 for alterations and additions including the partial demolition of the dwelling house; additions on three levels; a swimming pool and a front fence on Lot 13 DP 3907 and known as 34 Chisholm Street, Greenwich not be amended for the following reasons:-

 

1.         The proposal would be contrary to an objective of the Residential 2(a2) Zone under the Lane Cove LEP 1987 because it would not retain the existing residential amenity of the detached single family dwelling area.

 

2.         The proposal would not comply with the objective of cl. 3.6 of Council’s Code for Dwelling Houses, August 2002 in relation to Privacy And Overlooking because it would have the potential to significantly affect the privacy of the occupants of each adjoining site.

 

3.         The proposal would not comply with the intent of the numerical standard under point 3 of cl.3.6 of Council’s Code for Dwelling Houses, August 2002 because the proposed roof terrace would have a maximum dimension of 10.8m.

 

4.         The proposal would be contrary to the public interest because it would be prohibited under Council’s Draft Comprehensive Development Control Plan.

                                                                                                                    

                                                  

 

 

 

 

 

Michael Mason

Executive Manager

Environmental Services Division

 

 

ATTACHMENTS:

AT‑1 View

Site Location Plan and Elevations

2 Pages

 

AT‑2 View

Neighbour Notification Plan

1 Page

 

AT‑3 View

GMU advice dated 4 March 2009

3 Pages

 

 

 


Inspection Committee Meeting 5 September 2009

 

Environmental Services Division Report No. 219

 

 

 

 

 

Reference:    Environmental Services Division Report No. 219

Subject:          330 Pacific Highway Lane Cove

Planning and Building Committee at its meeting on 17 August 2009 resolved that the matter be referred to the next Inspection Committee Meeting to held on the 05 September 2009.   

Record No:    DA09/12-01 - 26885/09

Author(s):       Kristy  Wellfare 

 

 

Property:                     330 Pacific Highway Lane Cove

 

DA No:                         D12/2009 

 

Date Lodged:              5 June 2009

 

Cost of Work:              $200,000.00

 

Owner             :                       A G Low

 

Author:                         Kristy Wellfare

 

 

DESCRIPTION OF PROPOSAL TO APPEAR ON DETERMINATION

Section 82A Review of DA09/12 which approved alterations and additions to an existing semi-detached dwelling.

ZONE

Residential 2(a1)

IS THE PROPOSAL PERMISSIBLE WITHIN THE ZONE?

The proposal is permissible with the zone

IS THE PROPERTY A HERITAGE ITEM?

The property is not a heritage item

IS THE PROPERTY WITHIN A CONSERVATION AREA?

The property is not located within a conservation area

DOES DCP 1- BUSHLAND APPLY TO THE PROPERTY?

The provisions of DCP1 do not apply to the property

BCA CLASSIFICATION

Class 1a and 10a

STOP THE CLOCK USED

No

NOTIFICATION

Neighbours                   326, 328, 332, 334 Pacific Highway

3, 5 Haldane Crescent

Ward Councillors         East Ward

Progress Association   Osborne Park Progress Association

Other Interest Groups   Nil

 

REASON FOR REFERRAL:

 

The original development application was approved under the delegated authority of the Executive Manager, Environmental Services.  The Section 82A Review is therefore referred to the Planning and Building Committee for determination.


EXECUTIVE SUMMARY:

 

·     The proposal is a Section 82A review of determination for DA09/12, which approved alterations and additions to an existing semi-detached dwelling.  The applicant is seeking a review of condition 2(a)-(c) of the consent. 

·     In addition, the applicant has amended the parking aspect of the proposal and is seeking to provide for a double garage and terrace onto Haldane Lane in lieu of the approved parking structure. The proposed double garage has a trafficable roof accessible from the lower ground floor level facing onto Haldane Lane. A copy of the Section 82A review and amended plan is contained in (AT3) and (AT1).

·     The development application was approved under delegated authority on 5 May 2009, however conditions of consent had the effect of reducing the floor space ratio from that proposed by the applicant.

·     The development application sought a floor space ratio of 0.94:1 (199.3 m²) in an area where the floor space ratio control is 0.7:1 (148.4 m²).  The consent issued allowed a floor space ratio of 0.73:1 (154.7 m²).  The approved floor space ratio exceeded the Code by 6.3 m².

·     There are a number of semi detached dwellings in this section of Pacific Highway, which back onto Haldane Lane.  In the past the floor space ratios of additions to these buildings has exceeded the Code by substantial amounts.  A comparison of the floor space ratios is included in the original development assessment report dated 6 April 2009.  (AT4).

·     The Section 82A review and amended plan was notified and one objection was received. Concerns were raised regarding privacy and overlooking, and the impact on trees.

·     The Section 82A Review is submitted to the Planning and Building Committee for review and determination.  It should be noted that the applicant has requested that the site and proposal be inspected by the Inspection Committee. 

 

SITE:

 

The subject site is located on the north-eastern side of Pacific Highway, between Cobden Avenue and Allison Avenue. The site has an area of 212 m² and has a frontage of 6.4m to Pacific Highway and a rear frontage of 6.2m to Haldane Lane. The site falls from Pacific Highway to Haldane Lane.  Existing improvements on the site consist of a semi-detached mostly brick dwelling with a pitched slate roof.  The dwelling is single storey at the front and two storey at the rear.  The site adjoins a mixed use building to the southeast at 328 Pacific Highway. At the rear are the back yards of properties fronting Haldane Crescent.  Site Location Plan and Neighbour Notification Plan attached (AT1 and AT2).

 

PROPOSAL:

 

The proposal comprises 2 parts:

 

The Section 82A Review

 

The Section 82A Review seeks a review of condition 2(a)-(c) of the development consent D19/2009 granted for alterations and additions to the existing semi-detached dwelling at 330 Pacific Highway Lane Cove.

 

The review seeks a review of Condition 2 as follows:

 

1.       Deletion of condition 2(a) which required a minimum rear setback of 5m

2.       Deletion of condition 2(b) which restricted the width of the rear decks to 1.5m

3.       Deletion of Condition 2(c) which restricted the provisions of on-site car parking to one car space.

 

Amendments to Approved Plans

 

In addition to the Section 82A Review, the applicant seeks consent for the following additional work:

 

1.         Deletion of the approved open car space at the rear of the property and inclusion of a double garage accessed from Haldane Lane with a trafficable roof over, forming a rear deck accessible from the lower ground floor level bedroom with a planter box along the Haldane Lane edge of the terrace.

 

In accordance with Section 82A(3A) of the Environmental Planning and Assessment Act 1979 and Council’s legal advice, in requesting a review, the applicant may make amendments to the development described in the original application. The additional works proposed have been notified, 1 objection received and the proposal has been assessed in accordance with this section.

 

The report has therefore been divided into 2 sections, the first dealing with the Review aspect and the second with the parking amendment.

 

PREVIOUS APPROVALS/HISTORY:

 

28 December 2007:    Refused.  Alterations and additions to existing semi detached dwelling. (DA07/182).

 

This development application proposed a first floor addition to the existing semi detached dwelling as well as substantial alterations and additions to the rear of the dwelling at ground floor and lower ground floor levels resulting in a three storey dwelling with a floor space ratio of 1.02:1. The application was refused under delegation for a number of reasons, including non-compliance with the floor space ratio, number of storeys, exceedence of internal ceiling height, and side setback controls contained within the Code, as well as bulk and scale and privacy concerns.

 

5 May 2009:                 Approved. Alterations and additions to an existing semi-detached dwelling (DA09/12), and the subject of this modification.

 

This development application proposed an extension to the existing ground level and lower ground level resulting in a floor space ratio of 0.94:1. The application was approved subject to conditions requiring a rear setback of 5m in accordance with the rear setback of the neighbouring semi-detached dwelling and to create greater separation between the proposed rear balconies and the dwelling house and private open space of 3 Haldane Crescent to the rear of the site. This condition also served to reduce the approved floor space ratio to 0.73:1.

 

PART 1 - SECTION 82A REVIEW

 

Section 82A of the Environmental Planning and Assessment Act, 1979 allows an applicant to request Council to review the determination of an application. In accordance with the provisions of Section 82A of the Environmental Planning and Assessment Act, 1979, Council is satisfied of the following:

 

·     The subject application was not complying development, designated development, integrated development or an application made by the Crown.

·     The subject application was determined by the Executive Manager, Environmental Services under delegated authority on 5 May 2009. The request for review was received by Council on 5 June 2009. Therefore, the review is within the 12 month timeframe.

·     The applicant has paid the applicable fee in connection with the request for a review.

·     In requesting a review, the applicant has made amendments to the development described in the original application,

·     The proposed deletion of design conditions 2 (a), 2 (b), 2 (c) and the proposed amended car parking arrangements would not result in a development substantially different from development described in the original application.

·     The application was advertised for a period of 14 days.  The advertising period was between 11 June and 25 June 2009.

·     One objection was received during the advertising period, and the concerns raised in the objection received during the advertising period are assessed within this report

·     As the original determination was made by the Executive Manager Environmental Services, the review of the application is referred to Council’s Planning and Building Committee for determination.

·     Council would proceed to issue the determination notice as soon as practicable after a decision has been made in accordance with the requirements of Section 82A of the Environmental Planning and Assessment Act, 1979.

·     The application is not the subject of any appeal, and

·     This is the only review that has been requested for the subject application.

 

SECTION 82A ISSUES RELATING TO REVIEW OF CONDITIONS 2(a) –(c).

 

In the supporting information received accompanying the Section 82A review and the proposed additional works, the applicant put forward comments in support. These comments, and Council’s officer’s response, are as follows:

 

“Floor Space Ratio (FSR) Precedence: In relation to the approved FSR in our street, at least 4 approved developments where Council has permitted the 0.7:1 FSR control to be waived are documented. In particular 364 Pacific Hwy has a ratio of 1.17:1. Also note that 348 Pacific Highway is listed in the Council report no. 101 as being 0.83:1, however we have collected information from an accurate source and believe this development to be 1.5: 1. Further investigation by Council is strongly encouraged to verify this statement. Please note that the FSR or our resulting development application is calculated at 0.94:1.”

 

Comment       

 

Re-calculation of the floor space ratio for the development at 364 Pacific Highway using the same criteria applied to 330 Pacific highway results in a floor space ratio of 0.94:1. This application was approved in 1998, under D1998/156.

 

“Offset of semi-pairs: Offset in this context is defined as the western most point of the semi-pair being out of alignment to each other. Please refer to the photographs showing aspects from Haldane Lane and aerial view pictures in Appendix A. Refer first to the most exemplary semi-pair - 346 and 348 Pacific Highway. This semi-pair shows an offset in relation to the nature of the allotment angle. In respect of the semi-pair that we are one of - 330 and 332 Pacific Highway, the aforementioned offset is of the same nature and scale as proposed in our development application. In support of the nature of offset semi-pairs please also refer to Appendix A. Other compelling offset examples in our street: 342 and 344 / 350 and 352 /368 and 366. Please note that in 3 of these semi-pair examples the house that is extending beyond its neighbour have all had their developments approved by Lane Cove Council within the past 11 years with the most recent approval being granted just 2.5 years ago for 344 Pacific Highway.”

 

Comment

 

The following is a summary of the recent development history of the properties noted by the applicant above:-

 

342 Pacific Highway:  BA115/1989. Approved 17/4/1989

BC606/1992. Allowed to remain 5/1/93

344 Pacific Highway:  D113/2006. Alterations and additions and new front wall. Approved 30.5.2007. Restricted to 0.82:1.

 

346 Pacific Highway:  D241/1999 Additions. Approved 7/9/1999.

348 Pacific Highway:  D384/2007 Internal alterations and additions (no new floor space created ) Approved 26.3.2008

                                    BA156/1998A. Approved 23.5.2001

                                    BA156/1998. Approved 15/6/1998

 

350 Pacific Highway:  D40/2008. Rear balcony and front fence. Approved 6/5/2008. There is no other recent development history in Council’s computer system.

352 Pacific Highway:  D316/2003 Alterations and additions. Approved 3/2/2004.

 

366 Pacific Highway:  D2008/370 Awning and Timber deck. Approved 11/2/2009. BA189/1998. Timber deck to dwelling. Approved 11/6/1998 BA1997/209. Additions to dwelling. Approved 1/9/1997

368 Pacific Highway:  There is no recent development history pertaining to the property on Council’s computer records.

 

It is noted that 344 Pacific Highway was restricted to a floor space ratio of 0.82:1 by Council.

 

“Additional crucial arguments for semi-pairs In addition to the precedence aforementioned there are 5 other reasons supporting this offset.

1)         privacy is maximised between the semi-pair particularly because the areas of each of the houses to be offset are main living areas.

2)         in consideration of the natural arc of the sun, the offset of our house 330 in relation to 332 will maximise light to both homes, specifically their living areas

3)         the offset follows the natural flow of the street

4)         a larger indoor living area with a significantly smaller balcony is in the line with the style and type of house that is being developed

5)         In relation to point 4 it follows that minimised social gatherings on the upper deck area will occur - this is in direct consideration to the privacy between us and our direct neighbours at 332 and 328, and the distant neighbour across the lane way (at 3 Haldane Street) diagonally opposite. In relation to this final point please also regard part B below. Our consideration for the privacy and comfort of ourselves and of our direct neighbours is paramount in our development.”

 

Comment       

 

In response to the above, the following is noted:

 

§ Privacy to the neighbouring semi-detached dwelling has not been raised as a concern. Notwithstanding this, the living areas of the semi-pair are separated by a solid wall on the boundary with no window openings.

§ The attached semi-pair at 332 Pacific Highway is to the northwest of the subject site and as such the alignment of 330 Pacific Highway to the southeast would not affect the solar access available to 332 Pacific Highway between the hours of 9am and 3pm at mid-winter

§ The 5m setback required by condition 2 (a) reinforces the existing 5m setback of the attached dwelling from the rear property boundary. Due to the oblique nature of the rear boundary at 330 and 332 Pacific Highway, the rear alignments of the dwelling  will be offset from each other.

 

“We are committed to building the upper deck no more than 1500 mm as supported in point 5 above. The lower deck has been amended to extend to the boundary of the lower ground level and a privacy screen will be erected on the street boundary. This privacy screen will comprise of appropriate native flora that will feed native birds and wildlife. In support of this design please refer to a precedence set by no less than 9 properties in our street. These properties display lower ground decks/courtyards and/or garages/car spaces beneath.”

 

Comment

 

Condition 2 (b) reinforces the applicant’s commitment to construct the upper level deck to no greater than 1500mm in width. Should council approve the garage structure, conditions 2 (b) would be amended to remove reference to the lower ground floor level deck. The proposed planted privacy screening to the lane (Haldane Lane) boundary is considered inadequate, and hence draft condition 2 (d) has been provided to ensure appropriate minimum soil dimensions are provided.

 

“In support of the lower deck extending to the boundary line it has an increased aesthetic appeal and also protects the cars parked beneath. Please note that a suitable translucent screen will be erected between homes 330 and 332 to increase privacy but also allow the maximisation of light. A vegetation screen will be grown to 1.5 metres between 328 and our house 330 Pacific Highway in consideration to the pending application for an entertaining courtyard in property 328 Pacific Hwy.”

 

Comment

 

The privacy screen intended to be erected is not noted on the plans. To that end, a draft condition [Condition 2 (f)] has been provided in the recommendation of this report should Council be in mind to approve the garage structure.

 

“More than before we need an alternate entertaining area since an enormous road sign has been recently erected against our front boundary wall at the front of our house on the Pacific Highway(refer to Appendix C). This road sign towers above our property and has an overbearing presence as you can observe from the pictures. Use of our front courtyard for outdoor entertaining purposes has become extremely unappealing. We did not give permission for this sign to be erected, nor did Lane Cove Council or the RTA seek our approval for such a sign to be erected so close to our home.”

 

Comment

 

The abovementioned sign is erected in the footpath reserve of the Pacific Highway administered by the Roads and Traffic Authority. 

 

“The issue explained to us by Council regarding this amendment was in relation to an engineering issue. We have amended the development to increase the size of the driveway entrance. We also are committing to replant appropriate native flora in self-sustaining planter boxes on the boundary of the lower ground floor deck area. There is precedence of no less than 9 properties in our street where a double carport/garage has been allowed with nil to minimal landscaped areas being observed. Refer to Appendix B.”

 

Comment

 

In the plans submitted with the Section 82A Review, the driveway crossing has been widened. This amended proposal has been referred to Council’s Development Engineer for comment, and no concerns were raised regarding manoeuvrability on the site for two car space. Should Council be of a mind to approve the garage structure, condition 2 (c) should be deleted and additional conditions be imposed as recommended by Council’s Development Engineer. Draft conditions are provided in the recommendation of this report.

 


PART 2 – AMENDED PARKING ARRANGEMENT

 

The amended plans submitted involved the amendment of the approved parking to include the construction of a garage with a trafficable roof.

 

PROPOSAL DATA/POLICY COMPLIANCE (AMENDED PLANS)

 

The works relating to the proposed garage do not comply with the following provisions of Council’s Code for Dwelling Houses, Fences, Private Swimming Pools and Outbuildings:

 

§ Deck/balcony width: 3.8m proposed including 600mm wide planter box.

§ Setbacks to side boundaries: Nil setback proposed

 

REFERRALS

 

Manager Urban Design and Assets

 

The amended parking proposal was referred to Council’s Development Engineer for comment. No concerns were raised regarding the amended car parking arrangements, subject to the imposition of amended and additional conditions, including requiring a 500mm setback from the driveway to the existing power pole.

 

Manager Parks

 

The amended proposal was referred to Council’s Tree Assessment Officer, who provided the following comments. The amended plans “show a raised garden bed with external measurements of 4.6m long x 400mm wide x 600mm in depth. The planter box is proposed to accommodate screening plants for privacy. It is over optimistic to expect shrubs large enough for screening to survive in this inadequate growing environment. The raised planter boxes should be at least 800mm wide internally to allow for adequate soil for plant growth. The depth of the planter box would be adequate to support plants.”       

 

Objections

 

In addition, Council’s Tree Assessment Officer reviewed the issues raised by the owners of 3 Haldane Crescent. With regard to the concerns raised in relation to the Jacaranda tree located in the neighbouring property at 328 Pacific Highway and the Grevillea shrub located in the south-western corner of the subject site, the following comments were provided.

 

The Jacaranda tree is designated for removal as part of the neighbouring development. This tree is located in close proximity to the existing masonry retaining wall and has caused significant damage to the wall. Given the location of the tree it was determined that the tree was in an untenable location because of its elevated growing environment therefore should be removed as part of the development (D344/08). Furthermore there is no room for future growth of the tree’s root system.

 

The Grevillea “Honey gem” located in the southwest corner of the property is less than 4m tall, is over-mature, has poor form and is planted underneath power wires. This tree is not covered by Council’s Tree Preservation Order and is considered not worthy of retention given its poor form.        

 

Lane Cove LOCAL Environmental Plan 1987 (Section 79c(1)(a))

 

The amended plans submitted with the Section 82A Review raise no additional concerns with regard to Lane Cove Local Environmental Plan 1987. (See original report).

 


DRAFT LANE COVE LOCAL ENVIRONMENTAL PLAN 2008

 

The amended plans submitted with the Section 82A Review raise no additional concerns with regard to the Draft Lane Cove Local Environmental Plan 2008. (See original report).

 

Other Planning Instruments

 

The amended plans submitted with the Section 82A Review raise no additional concerns having regard to the provisions any other applicable planning instrument.

 

 

SECTION 82A RELATED Variations to Council’s Codes/PolicIes

 

As noted in the preceding policy assessment, the amended plans submitted with the Section 82A Review would result in non compliance with the following controls:-

 

-      Maximum deck width requirement; and

-      Side boundary setback requirement to the northwest and southeast boundaries for the garage structure.

 

Each of these departures is discussed below. The areas of non-compliances of the original proposal are addressed in Council’s Assessment Report of April 2009.

 

Deck Width

 

The amended plans submitted with the Section 82A Review include a garage structure with a trafficable roof forming part of the deck accessible from the lower ground floor level. The overall width of the deck is between 2.6m and 3.8m and features a planter box 600mm wide. Due to the slope of the site, this deck is elevated by 2.36m at its highest point and privacy has been raised as an issue by the neighbours to the rear. As such, the proposed deck does not comply with the 3m maximum width requirement of Council’s Code for Dwelling Houses.  The restriction of deck width is to allow reasonable sized decks for residents, whilst minimising loss of visual and aural privacy to neighbours.

 

Council’s Tree Assessment Officer has advised that the planter box should be at least 800mm wide to support appropriate screen planting. Should Council be of a mind to approve the structure, additional draft conditions have been provided requiring this planter box be of sufficient internal dimension to support screen planting and that this planting be maintained at a minimum height of 1.5m. It should be noted that the draft condition provided [draft Conditions 2 (d)] combined with Condition 2 (a) as approved would result in a deck of between 5.5m and 6.7m in width due to the 5m setback requirement imposed on the original consent.

 

Setback to Side Boundaries

 

The additional plans submitted with the Section 82A Review do not alter the non-compliance of the semi-detached dwelling with the side setback controls as discussed in Council’s Assessment Report of April 2009.

 

The garage structure is proposed to be built with a nil setback to both the north-eastern and south-western boundaries and does not comply with the side setback control. Council’s Code for Dwelling Houses allows setback variations to the side setback requirement for:-

 

i.      an open carport on nil boundary setback; and

ii.     detached garages on nil boundary setback.

 

Regarding the non-compliance with the side setback requirements arising from the proposed garage structure, the following comments are offered:-

 

·     The proposed garage structure is attached to the dwelling and cannot be considered as a detached garage.

·     The site is particularly constrained being 6.2m in width at the rear boundary. In order to provide two car spaces on the site, any garage structure proposed would rely on a nil side setback in order to accommodate these spaces in accordance with the Australian Standard 2890.1.

·     Haldane Lane features a number of garage structures to the rear of semi-detached dwellings in this locality featuring nil setbacks to the side property boundary and/or rear property boundary.

·     The neighbouring sites at 328 and 332 Pacific Highway also feature parking areas at the rear of the sites and as such, side setbacks for the garage are not considered to be necessary to maintain privacy to the immediately adjacent properties.

·     Landscaped area is generally provided at the front of the sites in the locality, with parking areas located to the rear due to the inherent difficulty in achieving safe access to and from the Pacific Highway for such narrow sites.

·     The topography of the site and the existing built form on neighbouring sites, both of which feature a nil setback to the subject site, preclude any access to significant views between the three properties. This situation would not alter as a result of the proposed garage structure.

 

Having regard to the above, the proposed garage structure is not considered to be contrary to the objectives of the side setback control.

 

RESPONSE TO NOTIFICATION (Section 79C(1)(d))

 

One submission was received in response to the notification of the Section 82A Review. The submission contained a copy of the submission received during the notification period of the original application. The issues raised in the additional submission can be summarised as follows.

 

The latest plans do not appear to address any of the issues raised on my response to the earlier notification dated 2 February 2009

 

Comment       

 

The concerns raised in the letter received by Council during the notification of the original development application included privacy and the impact on the trees on the site and neighbouring site are addressed in Council’s Assessment Report of April 2009. The applicant has proposed a planter box over the proposed garage structure in order to address these concerns. This planter box has been assessed and is not considered to be of a sufficient width to support screen planting and a draft condition has been included in the recommendation of this report to be imposed in the event that Council favourably considers the review of determination.

 

The windows and balcony at the top level (RL 97.30) of the proposed development overlook at close quarter the rear courtyard and buildings on our property [3 Haldane Crescent]. Measures to mitigate this would include:-

 

·     Limiting the western building alignment to that already defined by the adjoining semi-detached residence;

·     Prohibiting removal of any of the canopy of the mature jacaranda; and

·     Prohibiting the removal of the grevillea.


Comment       

 

The elevated ground floor level at RL97.30 would be 5.17m above the level of the centre of Haldane Lane at RL92.13. In Council’s assessment report of April 2009, it was considered that locating a deck servicing a living area at this level with a setback of 1.4m from the rear property boundary would result in unacceptable privacy and overlooking impacts on the neighbouring property to the rear. Council’s assessment of the elevated ground floor level deck is not altered following the submission of amended plans. The amendments to the basement level incorporating a garage with trafficable roof and planter box accessible from the lower ground floor level bedroom are not considered to result in any undue privacy impacts of the property to the rear of the site, subject to the imposition of conditions requiring a minimum width of the planter box to ensure sufficient soil area to support appropriate screen planting.

 

The jacaranda and grevillea noted have been assessed by Council’s Tree Assessment Officer, who notes that the neighbouring property at 328 Pacific Highway has approval to remove the jacaranda in question, and that the grevillea is not subject to Council’s Tree Preservation Order as it is less than 4m in height.

 

CONCLUSION

 

Council is requested to determine two issues:-

 

1.         Determine the Section 82A request to reconsider D12/2009 conditions 2 (a), (b) & (c).

 

Recommendation: That Council determine the 82A request

 

The review of development consent D12/2009 has been assessed under Section 79C and Section 82A of the Environmental Planning and Assessment Act, 1979 and it is referred to the Planning and Building Committee for determination.

 

2.         Determine works additional to the original application (Section 79C) being the construction of a double garage with trafficable roof in lieu of the approved open car space.

 

Recommendation: That the additional works be approved, subject to the conditions as recommended.

 

The proposed amendments to accommodate the double garage on the site have been assessed having regard to the provisions of Section 79C and Section 82A of Environmental Planning and Assessment Act 1979. Given the constraints of the site and the prevalence of garages fronting directly onto Haldane Lane in the immediate vicinity of the subject site, the proposed double garage is considered to be satisfactory, subject to the imposition of appropriate conditions of consent.

 

 

RECOMMENDATION

 

A          That pursuant to the provisions of Section 82A of the Environmental Planning and Assessment Act, 1979, as amended the determination of development consent D12/2009 granted on 5 May 2009 for the additions to the existing semi-detached dwelling on lot 70 in Deposited Plan 11416 and known as 330 Pacific Highway Lane Cove is submitted to the Planning and Building Committee for review and determination.

 

B         Should the Planning and Building Committee be of a mind to approve the amended parking arrangements, the following conditions be applied:-

 

 

            Delete condition 2 c)

           

            Delete condition 2 b) and replace with the following:

 

            2          b)         the width of the ground floor south-western (rear) elevation deck shall not exceed 1500mm

 

            Delete condition 47 and replace with the following:

 

47        Car parking. All parking and associated facilities are to be designed and constructed in accordance with AS 2890 Series. The plans shall contain the following details:

 

-           Sections showing the clearance to the underside of any overhead structure demonstrating compliance with the clearance provisions of AS2890.1.

 

Insert the following conditions:-

           

2          d)         The lower ground floor level planter box above the garage structure shall have minimum internal soil area dimensions of 600mm depth x 800mm width extending across the entire structure.

                        e)         The screen planting within the planter box shall be maintained at a minimum height of 1.5m

                        f)          privacy screening to a height of 1.7m shall be provided to the north-western side of the lower ground floor deck

 

 

47A      Services Prior to any excavation works, the location and depth of all services must be ascertained. All costs associated with adjustment of the public utility will be borne by the applicant.

 

48A      Drainage plans amendments: The stormwater drainage plan 2048DA12A prepared by The Site Foreman dated 27/11/08 is to be amended to show the following:

-    the proposed grated drain along the Haldane Lane boundary needs to match the full width of the proposed driveway opening

-    the proposed rainwater tank adjacent the Pacific Highway boundary needs to drain the overflow by gravity to the receiving system

-    Environmental pollution control pit is to be installed just prior to the connection to the street system

The amended design is to be certified that it fully complies with, AS-3500 and Council's DCP-Stormwater management; certification is to be by a suitably qualified engineer. The amended plan and certification shall be submitted to the Principle Certifying Authority prior to the issue of the Construction Certificate.

The Principle Certifying Authority is to be satisfied that the amendments have been made in accordance with the conditional requirements and the amended plans are adequate for the purposes of construction. They are to determine what details, if any, are to be added to the Construction Certificate plans, in order for the issue of the Construction Certificate.

 

48B      The design and construction of the drainage system is to fully comply with, AS-3500 and Council's DCP-Stormwater management. The design shall ensure that the development, either during construction or upon completion, does not impede or divert natural surface water so as to have an adverse impact upon adjoining properties.

 

48C     Proposed Vehicular Crossing. The proposed vehicular crossing shall be constructed to the specifications and levels issued by Council. The driveway needs to be off set a minimum 0.500mm clear from the existing power pole.

A ‘Construction of residential Vehicular Footpath Crossing’ application shall be submitted to Council prior to the issue of the construction certificate. All works associated with the construction of the crossing shall be completed prior to the issue of the occupational certificate

 

48D                 Excavation greater the 1m: Where there are structures on adjoining properties including all Council infrastructures, located within 5 meters of the proposed excavation.

The applicant shall:-

§ seek independent advice from a suitably qualified engineer on the impact of the proposed excavations on the adjoining properties

§ detail what measures are to be taken to protect those properties from undermining  during construction

§ provide Council with a certificate from the engineer on the necessity and adequacy of  support for the adjoining properties

The above matters are to be completed and documentation submitted to principle certifying authority prior to the issue of the Construction Certificate

Provide a dilapidation report of the adjoining properties and Council infrastructure. The dilapidation survey must be conducted prior to the issue of the Construction Certificate. The extent of the survey must cover the likely “zone of influence” that may arise due to excavation works, including dewatering and/or construction induced vibration. The dilapidation report must be prepared by a suitably qualified engineer.

A second dilapidation report, recording structural conditions of all structures originally assessed shall be submitted to the principle certifying authority prior to the issue of the Occupation Certificate.

All recommendations of the suitably qualified engineer are to be carried out during the course of excavation. The applicant must give at least seven (7) days notice to the owner and occupiers of the adjoining allotments before the excavation works commence.

 

 

 

Michael Mason

Executive Manager

Environmental Services Division

 

 

ATTACHMENTS:

AT‑1 View

Site Location Plan

2 Pages

 

AT‑2 View

Neighbour Notification Plan

1 Page

 

AT‑3 View

Section 82A Review documents from the applicant

11 Pages

 

AT‑4 View

Development Assessment report 101 dated 6 April 2009

12 Pages