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Agenda

Independent Hearing and Assessment Panel Meeting

2 October 2012, 5:00pm
Please note a site inspection will be held at 3pm for panel members only

 


Notice of Meeting

 

Dear Panel Members,

 

Notice is given of the Independent Hearing and Assessment Panel Meeting, to be held in the Council Chambers, Lane Cove Council, 48 Longueville Rd Lane Cove on Tuesday 2 October 2012 commencing at 5:00pm. The business to be transacted at the meeting is included in this business paper.

 

Yours faithfully

 

 

 

 

Craig Wrightson

General Manager

IHAP Meeting Procedures

 

The Independent Hearing and Assessment Panel (IHAP) meeting is chaired by The Hon David Lloyd QC.  The meetings and other procedures of the Panel will be undertaken in accordance with the Lane Cove Independent Hearing & Assessment Panel Charter and any guidelines issued by the General Manager. 

 

The order of business is listed in the Agenda on the next page. That order will be followed unless the Panel resolves to modify the order at the meeting. This may occur for example where the members of the public in attendance are interested in specific items of the agenda.

 

Members of the public may address the Panel for a maximum of 3 minutes during the public forum which is held at the beginning of the meeting.  All persons wishing to address the Panel must register prior to the meeting by contacting Council’s Office Manager – Environmental Services on 9911 3611.  Speakers must address the Chair and speakers and Panel Members will not enter into general debate or ask questions during this forum.  Where there are a large number of objectors with a common interest, the Panel may, in its absolute discretion, hear a representative of those persons.

 

Following the conclusion of public forum the Panel will convene in closed session to conduct deliberations and make decisions. The Panel will announce each decision separately after deliberations on that item have concluded.  Furthermore the Panel may close part of a meeting to the public in order to protect commercial information of a confidential nature. 

 

Minutes of IHAP meetings are published on Council’s website www.lanecove.nsw.gov.au by 5pm of the Friday following the meeting.  If you have any enquiries or wish to obtain information in relation to IHAP, please contact Council’s Office Manager – Environmental Services on 9911 3611.

Please note meetings held in the Council Chambers are Webcast.  Webcasting allows the community to view proceedings from a computer without the need to attend the meeting.  The webcast will include vision and audio of members of the public that speak during the Public Forum.  Please ensure while speaking to the Panel that you are respectful to other people and use appropriate language.  Lane Cove Council accepts no liability for any defamatory or offensive remarks made during the course of these meetings.

The audio from these meetings is also recorded for the purposes of verifying the accuracy of minutes and the recordings are not disclosed to any third party under the Government Information (Public Access) Act 2009, except as allowed under section 18(1) or section 19(1) of the PPIP Act, or where Council is compelled to do so by court order, warrant or subpoena or by any other legislation.


Independent Hearing and Assessment Panel 2 October 2012

TABLE OF CONTENTS

 

 

DECLARATIONS OF INTEREST

 

APOLOGIES

 

NOTICE OF WEBCASTING OF MEETING

 

public forum

 

Members of the public may address the Panel to make a submission.

 

Independent Hearing and Assessment Panel Reports

 

2.       456 Pacific Hwy, St Leonards. S.82A review

 

3.       8 Bayview Street, Northwood

 

 

 

 

 

 


Independent Hearing and Assessment Panel Meeting 2 October 2012

456 Pacific Hwy, St Leonards. S.82A review

 

 

Subject:          456 Pacific Hwy, St Leonards. S.82A review    

Record No:    DA11/130-01 - 41123/12

Division:         Environmental Services Division

Author(s):      Peter Walker 

 

 

Property:                     456 Pacific Hwy, St Leonards.

 

DA No:                                    130/2011

 

Date Lodged:              10 May 2012

 

Cost of Work:              $15,000

 

Owner:                                    CSF Property Developments P/L

 

Applicant:                    Casella Wines

 

DESCRIPTION OF PROPOSAL TO APPEAR ON DETERMINATION

Section 82a review of determination for the Installation of an advertising sign.

ZONE

B3 – Commercial Core

IS THE PROPOSAL PERMISSIBLE WITHIN THE ZONE?

Yes

 

IS THE PROPERTY A HERITAGE ITEM?

No

IS THE PROPERTY WITHIN A CONSERVATION AREA?

No

IS THE PROPERTY ADJACENT TO BUSHLAND?

No

BCA CLASSIFICATION

Class 5

STOP THE CLOCK USED

2 stop days

NOTIFICATION

Neighbours                  452 Pacific Hwy, Strata lots 1-88/460 Pacific Hwy & 53-63 Nicholson Street, St Leonards, North Sydney Council.

Ward Councillors        - East Ward

Progress Association  - St Leonards-Wollstonecraft Residents Association.

Other Interest Groups

 

EXECUTIVE SUMMARY

 

·    The original proposal for the Installation of one (1) 12.5m x 3.6m advertising sign on the southeastern elevation of the existing commercial building was refused by Council at its meeting of 7 November 2011.   Original report attached (AT-1).

 

·    The current application is a Section 82A Review of the Determination. The size of the sign (12.5m x 3.6m) and its location are unchanged, however, the revised plans have deleted the content of the sign thus seeking approval for a blank sign. The report lodged with the application does state that ‘…the advertisement is for products (but only Casella products) and is not a building identification sign or business identification sign’.    

 

·    The Section 82A Review was notified and two objections were received. One from an adjoining property owner, the other from North Sydney Council. The objections were:-

 

·    It is recommended that the Independent Hearing & Assessment Panel refuse the proposal for the advertising sign as now proposed for the same reasons as it was previously refused.

 

·    The application is referred to the Independent Hearing & Assessment Panel for review and determination.

 

BACKGROUND

 

·    The applicant lodged the original Development Application on 7 July 2011 for the Installation of one (1) 12.5m x 3.6m advertising sign to be located on the southeastern elevation of an existing commercial building. This application included what the content of the sign would be, namely the Yellowtail wine - kangaroo logo and the image of two bottles of wine. Original report to Council attached (AT-1).

 

The application was refused by Council at its meeting of 7 November 2011 for the following reasons:-

1.         The proposed sign is third party advertising and is prohibited in accordance with Part N2.4(h) of the Lane Cove Development Control Plan without special permission from Council. Special permission is not recommended in this instance.

2.         The proposal is contrary to the desired future character of the St Leonards area and as such is contrary to the aims and assessment criteria of State Environmental Planning Policy No. 64 – Advertising and Signage.

3.         The proposed signage would set an undesirable precedent for future signage in the St Leonards commercial precinct as a whole.

4.         The proposal is contrary to the aim of the Lane Cove Local Environmental Plan “to preserve and, where appropriate, improve the existing character, amenity and environmental quality of the land to which this Plan applies” in accordance with Clause 1.2(b) of the Plan.

5.         The location of the sign on the side elevation would unduly restrict development potential on the neighbouring site.

6.         The proposal is not in the public interest.

 

Under the provisions of Section 82A of the Environmental Planning and Assessment Act 1979 an applicant may request Council to review its determination. 

 

The applicant lodged the current application for a S.82A review on 10 May 2012.

 

SITE

 

The site (456 Pacific Hwy, St Leonards) is located on the western side of the Pacific Highway, between Oxley Street and Friedlander Place. The site is 581.7m² in area (by DP) with a frontage of 15.551m to the Pacific Highway and depth of 36.373m. Existing development on the site consists of a multi-storey commercial building which houses several commercial/office uses. Existing development on the neighbouring site consists of a multi-storey commercial building to the northwest of the site and a single storey car wash to the southeast of the site.   Site Plan and Notification Plan attached (AT-2 and AT-3).

 


PROPOSAL

 

The applicant seeks consent to construct an advertising sign, 12.5m x 3.6m (45m²), on the top right portion of the southeastern elevation of the building. The plans lodged with the current S.82A review have deleted any indication of sign content however further details of the construction of the sign have been submitted. The sign is to be a ‘Flexface Banner’ sign with ‘sail tracks’ to facilitate the banner sign changes.    

 

PREVIOUS APPROVALS/HISTORY

 

There are 12 previous applications on Council’s computer records. The five (5) most recent applications are as follows:-

·         DA04/241:    Refurbish façade and rooftop terrace with fixed umbrellas. Approved 21 December 2004

·         DA03/337:    Office fitout. Withdrawn 17 October 2003

·         CDC02/48:   Installation of alarm signalling equipment. Approved 30 April 2002

·         DA99/580:    Erect internal Gyprock wall. Approved 24 January 2000

·         DA99/487:    Advertising Sign. 7 December 1999. (awning fascia sign on the Pacific Highway elevation).

The current proposal being:-

·         DA11/130:    Installation of one (1) 12.5m x 3.6m advertising sign on the southeastern elevation. Refused by Council on 7th November 2011.

 

RESPONSE TO NOTIFICATION

 

Two submissions were received in response to the notification of the Section 82A Review. The issues raised in the submissions were:-

 

No. 460 Pacific Hwy, St Leonards

 

·    Sign size is unsightly;

·    There is no retail outlet for products on the site; and

·    If sign is approved a precedent is set.

 

Comment

 

Whilst the statement that the sign is ‘unsightly’ is a subjective issue, it is agreed that there is no retail outlet on-site for Casella products and that a precedent would be created. The aims of State Environmental Planning Policy 64 - Advertising & Signage, are to ensure that signage ‘is compatible with the desired amenity and visual character of an area’.

 

Councils Development Control Plan 2009, incorporated the 2006 ‘St Leonards Strategy’ and public consultation with stakeholders to identify the desired amenity and visual character which the community expected for the St Leonards precinct. The DCP states that ‘third party advertising’ signage is not allowed, except with special permission from Council. Council did not give its ‘special permission’ when the application was before Council on 7 November 2011. If Council was to approve the application, Part 1, Cl. 3(2) of SEPP 65 states that a change in content of signage does not require consent, and Council could not enforce the 3rd party advertising restriction.      

 

Every Development Application is required to be dealt with on its merits, however the setting of a ‘precedent’ (or, the inconsistent application of a Council policy) would be a matter to be considered.   

Approval of the current application would encourage other applications for 3rd party advertising structures along Pacific Highway.   

 

North Sydney Council

 

·    Sign is considered inappropriate for this ‘gateway’ location as:-

A sign of this type & size would set an unwanted precedent for other signs on multi level buildings, and,

It would have an adverse impact on the streetscape.

·    The location is a gateway site and advertising sign of this size would create an unwanted precedent for signs on other multi storey buildings creating and adverse impact on the streetscape;

·    Consideration be given to North Sydney DCP which seeks that signs be ‘limited to small scale business identification advertisements at ground level’ and ‘no new larger illuminated wall and roof signs at upper levels’; and

·    Impact on street character.

  

Comment

 

It is agreed the location is inappropriate, as it could be considered a gateway site to the St Leonards commercial centre and Part N - 2.7 of Council’s DCP states that:-  ‘Third Party advertising structures will only be considered in the commercial core of St Leonards.’ The site is located 30m from the intersection of Oxley St & Pacific Hwy which forms the southernmost boundary of the Lane Cove Municipality and is within the ‘Eastern Gateway’ block of the St Leonards Precinct Plan (Figure 18 St Leonards Strategy 2006) 

 

With regard to North Sydney Development Control Plan (although for the adjacent LGA), Lane Cove Council must give some consideration to their controls, as in broader planning terms it would be appropriate for the integration of the streetscapes of the Crows Nest & St Leonards commercial areas.  The ‘St Leonards Strategy’ reports that ‘North Sydney Council’s streetscape strategy for St Leonards, be extended into the other council areas’, with the formal recommendation for the ‘Eastern Gateway’ precinct being to:- ‘Improve streetscape on southern side of Highway matching that in the North Sydney part of the centre’ with the reasoning being ‘To create a more unified image for the centre’.

 

Planning Comments on the Current Application

 

The applicant has submitted a report providing additional information and addressing the reasons for refusal.

 

The report states in ‘2.1 Locality Description’

 

‘The St Leonards locality represents a contiguous strip and municipal boundaries are not apparent such that the subject site does not present as a gateway.’

 

Comment

 

Disagree. The subject site is located within the ‘Eastern Gateway’ precinct (as identified in the St Leonards Strategy - Figure 12) and whilst the subject site is not on the extremity of the precinct, it is located only one street block in and 30m from the intersection of Oxley Street and on the exposed side face of a building which presents as a ‘gateway’ on Pacific Hwy to the higher density areas to the north. The sign would be highly visible in its proposed location.   


Reasons for Refusal

 

1. The proposed sign is third party advertising and is prohibited in accordance with Part N2.4(h) of the Lane Cove Development Control Plan without special permission from Council. Special permission is not recommended in this instance.

 

The applicant states that the proposal is permitted under State Environmental Planning Policy

 64, Lane Cove Local Environmental Plan 2009, and, Development Control Plan 2009 (with ‘special permission’).   Further, that the ‘special permission’ proviso in the Development Control Plan 2009 should be granted for the following reasons:-

·    ‘There are a number of examples of existing third party advertising panels’;

·    It is ‘harder to find a more suitable site that the subject one where such signage might be located’;

·    ‘The site is a bland concrete wall and the signage is proposed below the parapet of the building overlooking a site used as a car wash with minimal buildings thereon’;

·    ‘Lack of material adverse impact created by the proposal’; and

·    ‘The obvious limited life of any sign…’ (assumes that the carwash site will be redeveloped in the near future).

 

Comment

 

It is agreed that the proposal is permitted under SEPP 64 and the Local Environmental Plan, however the ‘special permission’ proviso contained within the Development Control Plan 2009 would logically require ‘special’ circumstances, and the reasons mentioned above are not considered to hold enough weight for Council to vary its position. The statement that it is ‘harder to find a more suitable site…..’ would suggest that the earlier claim, that the site is not a ‘gateway’ site, is questionable. Further, the statement of the ‘obvious limited life of any sign..…’ begs the question as to why the applicants would want to erect a sign with such a limited life span.          

 

2. The proposal is contrary to the desired future character of the St Leonards area and as such is contrary to the aims and assessment criteria of State Environmental Planning Policy No. 64 – Advertising and Signage.

 

The applicant has claimed that the sign is not contrary to the desired future character of the St Leonards area nor contrary to the aims & assessment criteria of State Environmental Planning Policy 64.  The assessment criteria of SEPP 64 were addressed with the original report as follows:-

1.    Character of the area: the proposal is not considered to be compatible with the existing or desired future character of the area or locality in which it is proposed to be located

2.    Special areas:  the proposal is not located within any of the special areas listed in the Policy. However, it is located opposite the residential component of a mixed use building which would detract from the amenity of these residences in terms of outlook from their balconies and living areas

3.    Views and vistas: the proposal does not obscure or compromise important views, and would not dominate the skyline. As noted above, the proposed signage would be visible from residential properties located close by and would reduce the quality of the outlook from these residences. The proposal does not impinge on the viewing rights of other advertisers.

4.    Streetscape, setting or landscape: As noted above, the proposal is not considered to be appropriate for the streetscape and setting. It is located on a blank wall and may contribute to the visual interest of the streetscape, however it does not reduce clutter by rationalising and simplifying existing advertising nor does it screen unsightliness. The proposed sign is wholly located on the elevation and does not protrude above buildings, structures or tree canopies in the area or locality, nor does it require ongoing vegetation management.

5.    Site and building: The proposal is not incompatible with the scale, proportion and other characteristics of the site or building, or both, on which it is to be located and, being located on a side wall, does not interfere with any important features of the site or building. However, the proposal does not show innovation and imagination in its relationship to the site or building.

6.    Associated devices and logos with advertisements and advertising structures: no safety devices, platforms, lighting devices or logos have been designed as an integral part of the signage

7.    Illumination: Council requested information regarding the proposed illumination of the sign, if any. This information has not been provided to Council.

8.    Safety: the RTA has not raised any concerns regarding the impact of the proposed signage on the safety for any public road, for pedestrians or bicyclists, and due to its proposed location the signage would not reduce the safety for pedestrians, particularly children, by obscuring sightlines from public areas

 

Comment

 

 The issue of whether the proposal is contrary to the desired future character of the St Leonards area is a more subjective issue.  As previously mentioned the 2006 ‘St Leonards Strategy’ document clearly indicates that 456 Pacific Hwy is within the ‘Eastern Gateway’ precinct of the St Leonards Centre. Whilst the strategy does not suggest specific controls for signage in the ‘Eastern Gateway’ area, some of the recommendations of the Strategy are to:-

 

·    Replace FSR control on Lane Cove part of corridor with height limits, stepping down (development) from northwest of precinct to southeast;

·    Promote hotels and serviced apartments;

·    Promote medium-scaled household goods showrooms, convenience shops;small-scale specialty shops, retail services, bars, cafes and restaurants; and

·    Prohibit large-scale comparison retail outlets.

 

It is difficult to see how a large advertising sign would be compatible with the desired future character of the gateway area, which the strategy would suggest to be a lower intensity commercial area, and which forms a transitional area to the St Leonards ‘Centre’.

 

One of the final recommendations proposed to:- ‘Improve streetscape on southern side of Highway matching that in the North Sydney part of the centre’ this would be achieved by extending North Sydney Council’s streetscape strategy for St Leonards, into the other council areas.

 

3. The proposed signage would set an undesirable precedent for future signage in the St Leonards commercial precinct as a whole.

 

Comment

 

The applicant claims that the approval of the sign could ‘not be regarded as a precedent for anything’ however on page 9 of their report it is inferred that ‘special permission’ could be granted as:-   ‘It is a reasonable conclusion therefore that the special permission referred to in N2.4 is specifically referenced to the commercial core of St Leonards where on the Pacific Highway there are a number of examples of existing third party advertising panels’.

 

It is appreciated that every Development Application should be assessed on its merits, however, in reality precedents can still be created. 

 

4. The proposal is contrary to the aim of the Lane Cove Local Environmental Plan “to preserve and, where appropriate, improve the existing character, amenity and environmental quality of the land to which this Plan applies” in accordance with Clause 1.2(b) of the Plan.

 

Comment

 

The applicants report refers to the arguments raised in Reason for refusal No. 2. 

 

5. The location of the sign on the side elevation would unduly restrict development potential on the neighbouring site.

 

The applicant claims that the sign would not restrict development potential of the abutting site at all but rather simply reduces the life of any sign on the building in that position. If an application is approved of the car wash site and goes ahead the signage would be obscured and removed. The applicant is aware and accepting of this fact. In addition Council is able to time limit the operation of a consent in the circumstances of the case.’

 

Comment

 

It is acknowledged that if the adjoining property was redeveloped, the sign would become redundant, further, Council could grant a limited consent for the sign (and this is an option that could be considered if Council was disposed to approve the proposal). A time limited consent still sets a precedent for signage that is considered to be contrary to the desired present & future character of the area.       

 

6. The proposal is not in the public interest.

 

The applicant has reiterated previously stated arguments within the report by Boston Blyth Flemming that the proposal will not create a public interest issue, and whilst it is acknowledged that only one objection was received from a private neighbour (460 Pacific Hwy) a firm objection was also received from North Sydney Council (which represents the community opposite the subject site).

 

Comment

 

The current proposal is almost identical to that previously submitted, however the current proposal has deleted the content of the sign and Council would therefore have little control over future content. If the current application is approved Council would be merely approving a blank advertising structure.  

 

It is felt that it is Council’s responsibility to consider the broader public interest even if public submissions have not been numerous. In this regard, for all of the issues raised in the original 5 reasons for refusal, and, the additional issues raised in this report, the proposal is not considered in the public interest.

 

CONCLUSION

It is considered that the original reasons for refusal are valid and the amended proposal and supporting report do not justify Council varying its position on the proposal to erect an advertising sign on the property.

 

 

RECOMMENDATION

 

That pursuant to the provisions of Section 82A of the Environmental Planning and Assessment Act, 1979, as amended, development application D130/2011, refused by Council on 7 November 2011 for Installation of one (1) 12.5m x 3.6m advertising sign on the southeastern elevation of the existing commercial building on Lot C DP 414984 and known as 456 Pacific Hwy, St Leonards is submitted to the Independent Hearing & Planning Panel for review & determination with the following options:-

 

Option 1

 

The Independent Hearing & Planning Panel reaffirm Council’s decision and refuse the review of determination of the application for the following reasons:-

 

1.    The sign is proposed to be used for third party advertising which is not permitted by Part N2.4(h) of the Lane Cove Development Control Plan without special permission from Council. Special permission is not recommended in this instance.

2.    The proposal is contrary to the desired future character of the St Leonards area and as such is contrary to the aims and assessment criteria of State Environmental Planning Policy No. 64 – Advertising and Signage.

3.    The proposed signage would set an undesirable precedent for future signage in the St Leonards commercial precinct as a whole.

4.    The proposal is contrary to the aim of the Lane Cove Local Environmental Plan “to preserve and, where appropriate, improve the existing character, amenity and environmental quality of the land to which this Plan applies” in accordance with Clause 1.2(b) of the Plan.

5.    The location of the sign on the side elevation would unduly restrict development potential on the neighbouring site.

6.    The proposal is not in the public interest.

 

Option 2

 

The Independent Hearing & Planning Panel approve the application as amended subject to the following draft conditions of consent:-

 

  1.       (20) That the development be strictly in accordance with drawings:-

           

Document

Prepared by

Plan Number

Proj No.

Dated

Site Plan

CP Architects

A 101 2 Rev ‘2’

352

9 Mar 12

North Elevation

CP Architects

A102 3  Rev ‘3’

352

9 Mar 12

West Elevation

CP Architects

A103  4 Rev ‘4’

352

9 Mar 12

 

except as amended by the following conditions:-

 

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

 

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

 

4.         (17)  An Occupation Certificate being obtained from the Principal Certifying Authority.

 

5.         (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.

 

6.         (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.

 

7.         (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.

 

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

 

9.         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)         Completion.

 

10.       (72) The proposed works must be confined within the boundaries of the site.

 

11.       (76) All machinery used on the site during demolition shall have a noise emission no greater than 75dB(A) when measured at a radius of 7.0 metres from the specified item.

 

12.       (77) All spillage deposited on the footpaths or roadways to be removed at the completion of each days work.

 

13.       (111) No part of the sign/structure to extend beyond the boundaries of the subject property.

 

14.       (132)  It should be understood that this consent in no way relieves the owners or applicant from any obligation to obtain any other approval which may be required under any covenant affecting the land or otherwise nor relieve a person from the legal civil consequences of not complying with any such covenant.

 

15.       (137)  Lane Cove Council charges a fee of $36 for the registration of any Part 4A Certificates (compliance, construction, occupation or subdivision certificates) issued by an accredited certifier under the Environmental Planning and Assessment Act.

 

General Engineering Conditions

16.     (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. 

 

17.     (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.

 

18.     (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.

 

19.     (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.

 

20.     (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.

 

21.     (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’.

 

Engineering Conditions to be Complied with Prior to Construction Certificate

 

22.     (B1) Council infrastructure damage bond: The applicant shall lodge with Council a $1000.00 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 Occupation 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 14 days 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.

 

 

 

 

 

 

 

Michael Mason

Executive Manager

Environmental Services Division

 

 

ATTACHMENTS:

AT‑1 View

Report to Council No.278 of 5 November 2011

7 Pages

AT‑2 View

Site Location Plan

2 Pages

AT‑3 View

Notification Plan

2 Pages

 

 


Independent Hearing and Assessment Panel Meeting 2 October 2012

8 Bayview Street, Northwood

 

 

Subject:          8 Bayview Street, Northwood    

Record No:    DA07/325-01 - 47918/12

Division:         Environmental Services Division

Author(s):      Rajiv Shankar 

 

 

 

Property:                     8 Bayview Street, Northwood

 

DA No:                                    DA325/07 (Section 96 modification)

 

Date Lodged:              10 August 2012

 

Cost of Work:              $339 646.00

 

Owner:                                    As per Council record:  Mr William Hopes

                                    As per this application: Mr Raymond Ross

 

Applicant:                    Raymond Ross

 

DESCRIPTION OF PROPOSAL TO APPEAR ON DETERMINATION

Modification to DA325/07 for alteration and additions to an existing dwelling house

ZONE

R2 Low Density Residential as per Lane Cove Local Environmental Plan 2009

IS THE PROPOSAL PERMISSIBLE WITHIN THE ZONE?

Yes

IS THE PROPERTY A HERITAGE ITEM?

No

IS THE PROPERTY WITHIN A CONSERVATION AREA?

No

DOES DCP Part H- BUSHLAND PROTECTION APPLY TO THE PROPERTY?

No

BCA CLASSIFICATION

Class 1A

STOP THE CLOCK USED

No

NOTIFICATION

Neighbours                   2, 3, 4, 5, 6, 7, 10, 12 Bayview St, 2, 2A, Holden St, 39, 41, 41A, 41B, 43, 45, 47, 49, 51, 53 Northwood St,

Ward Councillors        East

Progress Association  Northwood Action Group

 

REASON FOR REFERRAL:

 

This application has been referred to the Independent Hearing and Assessment Panel given the number of submissions and ongoing legal proceedings in the Land and Environment Court in relation to the unauthorised works being carried out not in accordance with the approved plans. 

 

EXECUTIVE SUMMARY:

 

·    Council granted consent to a Development Application DA325/07 for alteration and additions to the existing dwelling house on 2 April 2008.

 

·    Mr Raymond Ross (Applicant) commenced development pursuant to the consent.

 

·    During the course of construction the applicant carried out unauthorised works and made a number of changes that were not in accordance with the approved plans.

 

·    Given the extent of excavation carried out, potential damage to the adjoining property and works not in accordance with the development consent, Council issued a stop work order and required the applicant to engage the services of a structural engineer to investigate site excavation, assess structural adequacy and reinstate the levels as approved by the development consent DA325/07.

 

·    The applicant failed to comply with the requirement of the stop work order.

 

·    Council initiated Class IV proceeding in the Land and Environment Court. The four court orders and judgments are attached in the report (see attached as AT-3 to AT-6).

 

·    The full extent of unauthorised works and changes have been listed in Lane Cove Council v Ross (No 4) [2012] NSWLEC 191 (see attached as AT-6).

 

·    The applicant has lodged a Section 96 modification application, which includes various amendments that have been proposed or carried out.

 

·    The proposed development as amended, does not comply with a range of Lane Cove Local Environmental Plan 2009 objectives and Floor Space Ratio Principal Development Standard.

 

·    It is considered that the proposed development as amended, does not comply with the Lane Cove Development Control Plan objectives, front setback, external wall height, number of storeys, appearance in elevation, soft landscape area, cut and fill, solar access and width of balcony provisions.

 

·    The proposed development would have an adverse impact upon the amenity of the area generally and particularly the adjoining dwelling houses towards the south with respect to overshadowing, loss of privacy and visual bulk.

 

·    Having regard to the assessment of the proposed amendments, against the provisions of Lane Cove Local Environmental Plan 2009, Development Control Plan and the relevant provision of Environmental Planning and Assessment Act, it is recommended that this application be refused for reasons stated on pages 14-18 of this report.

 

SITE:

 

The site is located on the eastern side of Bayview Street, which ends at the northern edge of the site. The site is irregular is shape. The site falls towards the street. The site rises very steeply towards the eastern boundary. 

 

The site features a three to four storey dwelling house, which is presently under construction. There is an existing pool towards the rear, which is also under construction. There is a relatively large paved area towards the north of the pool followed by retaining walls towards the north and east of the paved area. 

 

There are a few trees towards the east of the site. No trees are proposed for removal in this application. 

 

Neighbouring to the south is a two storey brick and tiles dwelling house. Towards the north is a two storey dwelling house separated by a vehicular driveway which leads to a dwelling house towards the north west.  Site Location Plan and Neighbour Notification Plan attached (AT1) and (AT2).

 

PROPOSAL

 

The proposal is to amend development consent DA325/07 for the alteration and additions to an existing dwelling house. The proposed amendments are as follows:-

 

General

 

·    Alter the external finish of the building from face brick to cement render.

·    Inclusion of an internal lift.

·    Amend roof to a metal flat roof.

 

Lower Ground Floor

 

·    Excavate and lower the floor level of the front garage by approximately 1.4m to create an additional level, which did not exist in the original approval.

·    Change the shape of the front garage from a double width garage to a long narrow single garage.

·    The front setback is proposed to be reduced to 5.6m by the construction of side walls and the roof which project within the setback line.

·    The Statement of Environmental Effects fails to indicate any reduction of the front setback.

 

Ground Floor

 

·    Delete the entry stairs towards the north of the dwelling house to create a driveway to provide vehicular access towards the rear.

·    Excavate subfloor area towards the rear to create an additional double garage indicated as a non-habitable open space area.

·    Internal alterations.

·    New bathroom window towards the east.

·    New front balcony with a front setback of approximately 5.6,m.

·    Excavate to create a double garage accessible by a driveway towards the northern side. The Statement of Environmental Effects claims that the double garage would remain open.

·    Reconfiguration of window openings.

 

First Floor

 

·    Deletion of staircase within the lounge.

·    Internal room reconfiguration.

·    Relocate the main entry door from first floor level to ground floor level.

·    New concrete awning along part of northern and front western elevation.

·    New concrete awning toward the rear over kitchen window openings. These awnings are balconies accessible from dining room by sliding doors.

·    Reconfigure the splayed front wall alignment of the lounge room.

·    Reconfigure window openings to all elevation.

 

Second Floor

 

·    New rear full width balcony slab.

·    Reconfiguration of windows.

·    Reconfiguration and change of size of the master bed room.

·    Relocate internal stair.

·    Internal room reconfiguration and relocation of bathrooms.

·    New windows to the northern side of the master bed room.

·    Reconfigure the alignment of the garden beds and front bedroom alignment.

·    Reconfigure the front garden bed fronting the street.

·    Replace the southern boundary garden bed. However this area to be enclosed on site.

·    New awning towards the northern elevation of rear addition.

·    New concrete awning along part of northern and southern elevation and front western elevation.

·    Extension of the roof slab by approximately 2.5m towards the street front.

·    Increase length of brick wall adjoining southern side boundary.

 

A large portion of the proposed amendments has already been carried out.

 

PREVIOUS APPROVALS/HISTORY:

 

DA325/07 – Alteration and additions to existing dwelling house.

CD5/10 - Construction of an in-ground swimming pool.

 

PROPOSAL DATA/POLICY COMPLIANCE:

 

Local Environmental Plan 2009

 

Zoning:           R2 Low Density Residential

 

Site Area:        778.8m²

 

 

Proposed

Control

Complies

*Floor Space Ratio

0.76

0.5

NO

Height of Buildings

9.5m

9.5m

Yes

* FSR calculations:

 

Lower Ground Garage                        43.65

Ground floor Double garage               45.51

Total garage                                        89.16 -40 m² (exemption) = 49.16 m².

Remaining Ground Floor                    118.88 m²

First Floor                                            170 m²

Second floor                                       198.46 m²

Note: garden bed has been covered and included.

Total:                                                   591.22 m²

FSR                                                     591.22 / 778.8 = 0.76 : 1

 

Comprehensive DCP

 

 

Proposed

Control

Complies

Front setback (min)

5.6m (includes side wall and roof

Consistent with area or 7.5m

NO

Secondary street setback (corner lots)

NA

2m

NA

Side setback (min)

1500mm

1200mm/1500mm

Yes

Rear setback (min)

More than 20m

<1000m²: 8m or 25%

>1000m²: 10m or 35%

Yes

Wall Height (max) (maximum parapet of 600mm)

9.5m

7.0m

NO

Maximum Ridge height

9.5

9.5m

Yes

Sub floor height (max)

1.0m approx

1.5m

Yes

Number of Storey (max)

3 and part 4 storey

2

NO

Appearance in elevation

4 storey

3 maximum

NO

**Landscaped area (min)(Minimum width of 1m required to be included in area)

23.6%

35%

NO

Foreshore Building Line            (min)

NA

NA

NA

Cut and Fill      (max)

2.8m

1m

NO

Solar Access

Less than 3 hours

3 hrs to north-facing windows

NO

Provide for view sharing

Yes

Yes

Yes

Heritage Conservation

NA

NA

NA

Deck/Balcony depth (max)

7m approx

3m

NO

Private open space

More than 24 m²

24 m² (min)

4m minimum depth

Yes

Basix

Provided

Required

Yes

 

** The landscape area does not include the northern side driveway and the southern side setback as both have been paved.

 

Fences

 

 

Proposed

Control

Complies

Front and side return fence (solid and open design) height (max)

1600mm

Solid:   900mm

(solid and open design):             1.2m

NO

Note: Note that the drawings indicate the front fence as retaining wall to be made good. However, the front fence has been demolished and subject to the DCP requirements.

 

Car Parking

 

 

Proposed

Control

Complies

Off-street spaces (min)

4

Yes

Driveway width

3m and 4m

3m at the lot boundary

Yes

 

 

Private Swimming Pools

 

Approved as a Complying Development Certificate CD5/10.

 

REFERRALS

 

Manager Urban Design and Assets

 

The application was referred to Council’s Engineer who has indicated that Council policy for single frontage dwelling house allows for one driveway per dwelling house. The proposed and constructed second driveway for vehicular access to the proposed new double garage towards the rear of the site has not been supported.

 

Council’s Engineer has noted the increase in excavation and has provided an addition condition with regard to excavation. This condition would require the applicant to seek independent advice from an engineer on the impact of the excavation on the adjoining properties and measures to be taken to protect the properties from undermining during construction.  This condition would be included in the consent if the application were to be approved.

 

Manager Parks

 

The application was referred to Council’s Tree Assessment Officer who has expressed concerns with regard to the extent of work carried out in relation to what was originally approved and has stated:

 

“Originally a Landscape Plan was not requested by Council because of the modest nature of the development (works mainly within the original building footprint) however given the works have gone way beyond the original alterations and additions development application there appears to be very little soft landscape area left on the site. The subject allotment is Sydney Harbour Foreshore DCP affected and a Landscape Concept Plan must be submitted to Council for review to ensure the site is adequately and appropriately landscaped and neighbouring properties are not affected by loss of views because of screen planting or inappropriate species selection.”

 

 A landscape plan has not been provided along with the amendment application.

 

The tree assessment officer also says:-

 

“I noted while on site, the new pool; apparently built in accordance with the Complying Development Code required bulk excavation within the structural root zone of the large Fig tree in the neighbour’s property. In my opinion, it is highly likely this excavation would have encountered and removed large diameter roots growing from the Fig Tree. Subsequently the root system of the Fig is probably defective and the tree could possibly be structurally unstable.”

 

“The Plans show the access entry adjacent to the north boundary line stopping in the middle of know-where and then it is called open space from that point up until the entry into the side garage. Currently this driveway surface is made up of a mixture of blue metal and other rock aggregates and is effectively an impermeable surface. In summary the side driveway is not a soft landscape area and should not be calculated as part of the soft landscape area on the site”.

 

The above point has been noted and the area along the northern side has not been included in the soft landscape calculations.

 

The tree assessment officer continues to say:

 

“There are no tree related issues on the site.   The Canary Island Date Palm was removed in accordance with Councils Tree Preservation Order in 2009.”

 

S.96(2) MATTERS FOR CONSIDERATION

 

96(2)(a)  The development to which the consent relates is substantially the same development.

 

The proposed amendments are substantial in number and nature. The proposed development would:-

 

·    Exceed the maximum permissible floor space ratio which was originally compliant;

·    Have a reduced front setback which was originally compliant;

·    Exceed the maximum permissible external wall height;

·    Have extensive terrace which was originally compliant;

·    Be deficient in soft landscape area which was originally compliant;

·    Be 3 and part 4 storey and would have a 4 storey appearance which was originally compliant;

·    Have excessive excavation which originally reasonable;

·    Have 2 driveways as against 1 in the original application against Council’s Policy; and

·    Have 4 car parking spaces as against 2 car parking spaces in the original application.

 

The proposed amendments are considered substantial in nature and the proposed development is considered not to be substantially the same as that which was approved by Council.

 

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

 

There is no requirement to consult with the Minister, public authority or approval body as a result of the proposed modifications.

 

96(2)(c)  Any Submissions Made

 

Eleven submissions have been received in response to the notification of the development application.  The issues raised in the submissions have been discussed later in this report.

 

79(C)(a)(i)  The Provisions of any Environmental Planning Instrument

 

Lane Cove Local Environmental Plan 2009

 

The subject site is zoned R2 Low Density Residential under the provisions of Lane Cove Local Environmental Plan 2009.  The proposal is permitted with development consent of Council.

 

The proposed modifications as previously described do not meet with the following objectives and provisions of Lane Cove Local Environmental Plan 2009.

R2 Low Density Residential Zone Objectives are as follows:-

·    Objective: To retain, and where appropriate improve, the existing residential amenity of a detached single family dwelling area.

The proposed amendments do not retain the amenity of the adjoining dwelling house with regard to privacy and adequate solar access.

·    Objective: To encourage new dwelling houses or extensions of existing dwelling houses that are not highly visible when viewed from the Lane Cove River or Parramatta River.

The proposed amendments would give the dwelling house a 4 storey appearance, would be prominent and dominating in the street and would be visible from Lane Cove River.

·    Objective: To ensure that landscaping is maintained and enhanced as a major element in the residential environment.

The proposed amendments would reduce the landscaping to 23.6% given the concreting towards the rear and the proposed new driveway towards the north of the dwelling house.

Principal Development Standard - Floor Space Ratio.

 


The objectives of the Floor Space Ratio is:-

·    Objective: to ensure that the bulk and scale of development is compatible with the character of the locality.

Given the 4 storey appearance of the proposed development, the bulk and scale of the proposed development would not be compatible with that of the adjoining properties within the locality.

·    Objective: The maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map.

The maximum permissible Floor Space Ratio is 0.5: 1. The proposed Floor Space Ratio has been calculated to be 0.76:1 which exceeds the maximum permissible by 202.

 

State Environmental Planning policy No.55 – Remediation of Land

 

In accordance with Clause 7 of this instrument, Council is required to consider whether land is contaminated prior to granting consent to carrying out of development on this land. Notwithstanding that site investigations have not been carried out, the current and previous use of the site and surrounding sites have been for residential purposes and unlikely that that there has been any high risk uses. Accordingly, contamination of the site is unlikely to be an issue.

 

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

 

An amended BASIX certificate has been submitted along with the modification application.

 

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.  Clauses 20-27 are listed for consideration Clause 25   Foreshore and waterways scenic quality states:-

 

The matters to be taken into consideration in relation to the maintenance, protection and enhancement of the scenic quality of foreshores and waterways are as follows:

(a)  the scale, form, design and siting of any building should be based on an analysis of:

(i)  the land on which it is to be erected, and

(ii)  the adjoining land, and

(iii)  the likely future character of the locality,

 

The proposed development would be 4 storeys in elevation which would be is excessive in scale, form and design.

 

Under the DCP the subject property is within the Landscape Character Type 9 under Landscape Assessment as indicated in Section 5. The Statement of Character and Intent states that the intention is to retain the natural features, to preserve the vegetated skyline, and encourage development that is consistent with the scale, design and siting that which exists.

 

The proposal involves extensive excavation, reduction of the landscape area and removal of existing natural features. The proposed development would be 4 storeys in elevation which would be excessive in scale and design and would be visible from Lane Cove River. It is considered that the proposed development does not meet the Statement of Character and Intent of the DCP. 

 

Environmental Planning and Assessment Regulation 2000

 

Part 6, Clause 49 (1) states:-

 

(1)  A development application may be made:

(a)  by the owner of the land to which the development application relates, or

(b)  by any other person, with the consent in writing of the owner of that land.

 

Council’s records indicate Mr William Hopes as the owner of the land. The application has been made by Mr Raymond Ross who is neither the owner of the land, nor has he provided Council consent in writing from the owner of the land.

 

79(C)(a)(ii)  The Provisions of any Draft Environmental Planning Instrument

 

There are no Draft instruments that need to be considered.

 

79(C)(a)(iii)  The Provisions of any Development Control Plan

 

The original development was assessed against Council’s Code for Dwelling Houses and the current development is assessed against Council’s Development Control Plan. The proposed modifications as previously described do not meet with the following provisions of the Development Control Plan.

 

·    Front Setback

 

Objective: Maintain the predominant street setback.

 

The proposed development does not maintain the dominant setback, has a reduced front setback and would dominate the streetscape.

 

Provision: The minimum front setback of 7.5m.

 

The proposed development would have a reduced front setback of 5.6m.

 

Comment

 

The proposed amendment is not supported as it would adversely impact on streetscape.

 

·    Building Design

 

Objectives:

Ensure new dwellings and alterations and additions to existing dwellings reinforce the typical bulk and scale of existing dwellings within the street and the area.

Ensure that alterations and additions to existing dwellings maintain the integrity of the design and style of the existing building.

Ensure elevations to the street and public domain are well proportioned and designed.

Minimise impact in terms of overshadowing, loss of privacy, light spillage to adjoining properties, loss of views and amenity.

 

Given the 4 storey elevation, the proposed development does not reinforce the typical building bulk and scale of the existing dwellings along the street and area which is two and three storey. The proposed development would impact upon the amenity with regard to overshadowing and loss of privacy.

 

Provision: The maximum wall height to the underside of eaves for any floor above ground level (existing) is 7.0m to minimise the bulk and massing.

 

The external wall height of the proposed development would be 9.5m, which is well in excess of the maximum permissible.

 

Provision: A maximum of 2 storeys plus basement is permissible at any point above ground level  (existing). No building will be permitted to have an appearance (in elevation) exceeding three storeys in height.

 

The proposed development would be 3 and 4 storey and would have a 4 storey appearance in elevation which is more that the maximum permissible.

 

Comment

 

The proposed amendment to increase the number of storeys is not supported as it would adversely impact the streetscape and pose an unacceptable bulk and scaled structure relative to adjoin dwelling houses.

 

·    Landscape Area

 

Objectives:-

 

To provide privacy and amenity.

To retain and provide for significant vegetation, particularly large and medium sized trees and to provide continuous vegetation corridors.

To conserve significant natural features of the site.

To assist with on-site stormwater management.

 

The reduced landscaping particularly towards the rear, would adversely impact upon the privacy and amenity of the adjoining dwelling house. The extensive paving towards the rear would reduce the opportunity to retain, provide trees, conserve natural features of the site and increase stormwater runoff, which would not assist with on-site stormwater management. 

 

Provision: A minimum of 35% of the site is to be landscaped area. A minimum width of 1m is required for inclusion as landscaped area.

 

The proposed soft landscape area has been calculated to be 23.6% of the site area, which is less than the minimum permissible.

 


Comment

 

The proposal to further reduce the landscape area is not supported as it would significantly reduce site amenity.

 

·    Cut and Fill

 

Objective:-

 

Retain the natural ground levels as much as possible of a site and its existing landforms particularly in relation to the street or adjacent private open space areas.

To achieve reasonable landscaping within development.

To minimise the extent of cut and fill and its impact alongside boundaries.

To create a consistent relationship between the dwelling and the street.

To ensure that excavation and filling of a site does not result in unreasonable amenity impacts to adjoining dwellings.

To minimise change to water run-off patterns.

 

Extensive excavation towards the rear front and sides do not retain the natural ground levels of the site and existing landforms. The proposed development does not meet the minimum soft landscape requirement. The extensive cut and fill has had extensive damage to the adjoining properties and has impacted upon the amenity of the adjoining properties.

 

Provision: Limited to a maximum depth of excavation or fill of 1m at any point on the site unless it is demonstrated that the site’s slope is too steep to reasonably construct a 2 storey dwelling with this extent of excavation.

 

The excavation is more than 2.8m and would result in a 3 and 4 storey dwelling house.

 

Comment

 

The proposed additional excavation is not supported having regard to adverse impacts.

 

·    Amenity

 

Objectives:-

To provide reasonable solar access to habitable rooms and recreational areas of new and existing developments.

To provide reasonable acoustic and visual privacy for neighbouring properties.

Minimise overlooking between adjoining dwellings and their private open spaces.

 

The proposed development would exacerbate the impact of overshadowing and visual privacy on the adjoining property towards the south. The decks and balconies towards the front and rear would increase overlooking on the adjoining property towards the south.

 

Provision: Elevated decks, terraces or balconies greater than 1m above ground level (existing) to living areas are not to exceed a maximum depth of 3.0m.

 

The second floor deck towards the front significantly exceeds the maximum 3.0m requirement.

 


Comment

 

The proposed amendments fail to retain or provide reasonable acoustic and visual privacy to neighbours.

 

79(C)(b)  The Likely Impacts of the Development

 

This application seeks a number of modifications which would adversely impact upon the amenity of the adjoining development in particular the dwelling house towards the south with regards to privacy, overshadowing and visual bulk.

 

79(C)(c)  The Suitability of the Site for Development

 

The proposed modifications are excessive and render the site unsuitable for the proposed development.

 

79(C)(d)  Any Submissions Made

 

15 submissions have been received in response to the notification of the development application.  The issues raised in the submission can be summarised as follows:-

 

·    Alterations and additions have not been carried out in accordance with the approved DA.

 

Comment

 

It is agreed that the works have not been constructed in accordance with the approved plan. However the proposed amendments can be considered in a modification application under Section 96 of the Act.

 

·    Relocation of bathroom to the store room location.

 

Comment

 

No concern is raised by the relocation of the bathroom to the store room location.

 

·    Northern side has two large opening to allow for cars.

 

Comment

 

 It is acknowledged that the non habitable space towards the rear would be used as a double garage.

 

·    There would be two vehicular accesses to the subject property.

 

Comment

 

Council’s Engineer has not supported the proposed two vehicular accesses.

 

·    Noise and fumes from the cars in the rear double garage.

 

Comment

 

It is agreed that the cars driven to the proposed double car garage to the rear may adversely impact upon noise and air quality.

 

·    Use as Dual Occupancy.

Comment

 

There is no evidence that the building is to be used as a dual occupancy. It may be noted that dual occupancies are permitted within the zone.

 

·    Three Storey Dwelling House

 

Comment

 

It is agreed that the proposed building would be 3 storeys and part 4 storeys.

 

·    Impact Upon Amenity - Overshadowing.

 

Comment

 

 It is agreed that the proposed development would exacerbate the overshadowing impact upon the adjoining property towards the south.

 

·      Impact Upon Amenity - Privacy.

 

Comment

 

 it is agreed that the proposed development, in particular the 1.5m wide deck and balcony towards the rear, would adversely impact upon the privacy of the adjoining property towards the south. 

 

·    The spa pool is not approved in the complying development certificate.

 

Comment

 

It is agreed that the pool spa is not indicated in the complying development certificate and so does not have approval.

 

·    The concrete deck off the dining and kitchen overlooks rear open space and living rooms. The deck is above the existing boundary fence and impacts upon privacy of the adjoining dwelling towards the south.

 

Comment

 

It is agreed that the rear deck adversely impacts upon the privacy of the adjoining property towards the south.

 

·    The rear second floor 1.5m wide concrete deck overlooks the rear private open space and the pool area.

 

Comment

 

It is agreed that the rear second floor deck adversely impact upon the privacy of the adjoining property towards the south.

 

·    The second floor southern side open balcony has been enclosed by brickwork which impacts upon visual bulk and exacerbates overshadowing.

 


Comment

 

It is agreed that the open area towards the south has been enclosed on site even though it is indicated as open garden box in the amended plans. The additional brickwork would increase visual bulk and increase overshadowing to the adjoining property towards the south.

 

·    The planter boxes towards the southern side have not been built.

 

Comment

 

It is agreed that the planter boxes have not been built, however it is noted that the building works have still not been completed and the planter boxes may be built prior to the issue of any occupation certificate.

 

·    The second floor front deck has been built approx 2.5m forward to the approved size of the deck, which further impacts upon visual privacy.

 

Comment

 

It is agreed that the second floor front deck has been built larger than that approved.  The deck built on site is larger than that indicated in the plans submitted for consideration. The increase in the size of the front deck is not supported as it adversely impacts upon the privacy of the adjoining dwelling house towards the south.

 

·    Soft Landscape Area.

 

Comment

 

The additional concreting towards the rear and driveway to access the proposed double garage towards the rear has considerably reduced the soft landscape area. The proposed soft landscape area has been calculated to be significantly less than the minimum required by the Development Control Plan.

 

·    Floor Space Ratio, Building Bulk and Size.

 

Comment

 

The proposed floor space ratio has been calculated to be significantly more than the maximum permissible under the provisions of Lane Cove Local Environmental Plan 2009.

 

·    Rear Concrete Block Retaining Wall

 

Comment

 

It is agreed that as a result of excessive excavation the rear retaining walls have been built without obtaining Council approval.

 

·    The excessive concreting has resulted in increased excessive stormwater runoff and drainage related issues.

 


Comment

 

It is agreed that the proposed paving is excessive and would increase storm water runoff. Condition 44 in the consent requires the stormwater system to be certified that it meets Council’s DCP stormwater management plan.

 

·    Excessive Excavation.

 

Comment

 

It is agreed that there has been excessive excavation, which has resulted in damage to the adjoining properties.

 

·    The building bulk, reduced setback would be overdevelopment and would adversely impact on the streetscape.

 

Comment

 

It is agreed that given the excessive height, excessive floor space ratio and reduced front setback, the proposed development would dominate the streetscape.

 

·    The registered owner of the property is William Hopes and not Raymond Ross.

 

Comment

 

It is agreed that Council’s records indicate that the owner of the property is William Hopes and Council is yet to receive owner’s consent for this application.

 

·    The cost of building works has been underestimated.

 

Comment

 

It appears that the cost of building works has been underestimated. The applicant would be asked for a quantity surveyor’s estimate for the cost of works in the event the application was approved.

 

·    One large and 3 medium trees have been removed.

 

Comment

 

Council’s tree assessment officer has indicated that there are no tree related issues on site. The Canary Island Date Palm has been removed in accordance with Councils Tree Preservation Order in 2009.

 

79(C)(e)  The Public Interest

 

Significant unauthorised building works have been carried out without taking Council approval. This matter is subject to Land and Environment Court proceedings in relation to extensive illegal works carried out on site.

 

The extent of works carried out not in accordance with the approved consent, is significant. It is considered that the proposed development would exacerbate the impact of overshadowing and privacy on the adjoining property towards the south and further that the proposed development would create an undesirable precedent. It is considered that the development is not in the public interest.


CONCLUSION

 

The application has been assessed having regard to the relevant Planning Instruments and Council controls, as well as public good and suitability of the site.

 

Substantial excavation has been carried out towards the front and the rear of the property. The proposed development does not meet the requirements of Council’s Local Environmental Plan 2009 particularly with regard to Floor Space Ratio, and zone objectives to retain and where appropriate improve the existing residential amenity.

 

The proposed development does not meet the requirements of Council’s Development Control Plan particularly with regard to front setback, external wall height, number of storeys, appearance in elevation, landscape area, cut and fill, solar access and width of balcony.

 

The proposal is considered unsatisfactory with regard to matters under Section 96 and Section 79C of the Environmental Planning and Assessment Act 1979. The application is recommended for refusal.

 

 

RECOMMENDATION

 

That pursuant to Section 80(1)(b) of the Environmental Planning and Assessment Act, 1979, as amended, the Independent Hearing and Assessment Panel refuse the modification application for amendments to DA325/07 for alteration and additions to the existing dwelling house at 8 Bayview Street for the following reasons:

 

1.         The application does not have owner’s consent.

 

Particulars:-

 

            Council’s records indicate Mr William Hopes as the owner of the land. The application has been made by Mr Raymond Ross who is neither the owner of the land, nor does he have consent in writing from the owner of the land.

 

2.         The proposed and constructed second driveway for vehicular access to the proposed new double garage towards the rear of the site, is not in accordance with Council Policy and not supported.

 

       Particulars:-

 

            Council policy for single frontage dwelling house allows for one driveway per dwelling house.

 

3.         The proposed amendments are considered substantial in number and nature and the proposed development would not be substantially the same as that which was approved by Council.

 

Particulars:-

 

The  proposed development would:-

 

·   Exceed the maximum permissible floor space ratio which was originally compliant;

·   Would have a reduced front setback which was originally compliant;

·   Exceed the maximum permissible external wall height;

·   Would have extensive front terrace which was originally compliant;

·   Be deficient in soft landscape area which was originally compliant;

·   Would be 3 and part 4 storey and would have a 4 storey appearance which was originally compliant;

·   Would have excessive excavation which originally reasonable;

·   Would have 2 driveways as against 1 in the original application against Council’s Policy; and

·   Would have 4 car parking spaces as against 2 car parking spaces in the original application.

 

4          The proposed development does not meet the R2 Low Density Residential Zone Objectives.

     

Particulars:-

           

The proposed amendments do not retain the amenity of the adjoining dwelling house with regard to privacy and adequate solar access.

 

The proposed amendments would give the dwelling house a 4 storey appearance and would be prominent and dominating.

 

            The proposed amendments would reduce the landscaping significantly given the concreting towards the rear and the proposed new driveway towards the north of the dwelling house.

 

5.         The proposed development does not meet the Principal Development Standard – Floor Space Ratio objectives.

 

            Particulars: -

 

            Given the 4 storey appearance of the proposed development, the bulk and scale of the proposed development would not be compatible with that of the adjoining properties within the locality.

 

            The maximum permissible Floor Space Ratio is 0.5: 1. The proposed Floor Space Ratio has been calculated to be 0.76:1, which exceeds the maximum permissible.

6.         The proposed modifications do not meet the following provisions of the Development Control Plan objectives and provisions.

 

            Particulars:-

 

·         Front Setback

 

  • The proposed development does not maintain the dominant setback, has a reduced front setback and would dominate the streetscape.

 

            The proposed development would have a reduced front setback of 5.6m.

 

·         Building Design

 

            Given the 4 storey elevation, the proposed development does not reinforce the typical building bulk and scale of the existing dwellings along the street and area which is two and three storey. The proposed development would impact upon the amenity with regard to overshadowing and loss of privacy.

 

           

The external wall height of the proposed development would be 9.5m, which is well in excess of the maximum permissible (7.0M).

 

            The proposed development would be 3 and 4 storey and would have a 4 storey appearance in elevation which is more that the maximum permissible.

 

·         Landscape Area

 

            The reduced landscaping particularly towards the rear, of the proposed development would adversely impact upon the privacy and amenity of the adjoining dwelling house. The extensive paving towards the rear would reduce the opportunity to retain, provide trees, conserve natural features of the site and increase stormwater runoff, which would not assist with on-site stormwater management. 

 

            The proposed soft landscape area has been calculated to be 23.6% of the site area, which is much less than the minimum permissible.

 

·         Cut and Fill

 

            Extensive excavation towards the rear front and sides do not retain the natural ground levels of the site and existing landforms. The proposed development does not meet even the minimum soft landscape requirement. The extensive cut and fill has made extensive damage to the adjoining properties and has impacted upon the amenity of the adjoining properties.

 

            The excavation is more than 2.8m and would result in a 3 and 4 storey dwelling house.

 

·         Amenity

 

            The proposed development would exacerbate the impact of overshadowing and visual privacy on the adjoining property towards the south. The decks and balconies towards the front and rear would increase overlooking on the adjoining property towards the south.

 

            The second floor deck towards the front significantly exceeds the maximum 3.0m wide requirement.

 

7          The proposed front fence is a maximum of 1600mm above the natural ground level. The proposed height of the fence is much in access of the maximum permissible (900mm).

 

Particulars: -

 

            There exists no front fence. Any proposed front fence would be subject to the DCP requirements.

 

8.         The pool spa is not indicated in the complying development certificate and so does not have approval.

 

9.         Given the extent of works proposed in the amendment application and the subject allotment being effected by Sydney Harbour Foreshore DCP, a landscape plan has not been submitted along with the amendment application.

 

10.       The proposed development does not meet the Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (the SREP) Part 3, Division 2 sets out Matters for consideration. The development does not meet Sydney Harbour Foreshores and Waterways Area Development Control Plan for the SREP Landscape Character Type 9 Section 5 Statement of Character and Intent.

 

11.       The extent of work, carried out not in accordance with the approved consent, is significant. The proposed development would exacerbate the adverse impact of overshadowing and privacy on the adjoining property towards the south.

 

12.       The proposed development would create an undesirable precedent. As such it is considered that the development is not in the public interest.

 

 

 

 

 

 

Michael Mason

Executive Manager

Environmental Services Division

 

 

ATTACHMENTS:

AT‑1 View

Site Location Plan

1 Page

AT‑2 View

Notification Plan

2 Pages

AT‑3 View

LCC v Ross Judgement/Order dated 6 July 2012

2 Pages

AT‑4 View

LCC vs Ross Orders dated 26 July 2012

5 Pages

AT‑5 View

LCC v Ross (No.3) (2012) NSWLEC 171

6 Pages

AT‑6 View

LCC v Ross (No.4)(2012) NSWLEC 191

10 Pages