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Agenda

Independent Hearing and Assessment Panel Meeting

4 February 2014, 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, 48 Longueville Road Lane Cove on Tuesday 4 February 2014 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 on 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 the 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 on 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 the 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 4 February 2014

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.

 

 

CONFIRMATION OF MINUTES

 

1.      INDEPENDENT HEARING AND ASSESSMENT PANEL MEETING - 3 DECEMBER 2013

 

 

 

Independent Hearing and Assessment Panel Reports

 

2.       52B Cliff Road, Northwood................................................................................ 4

 

3.       Supplementary Report to Development Application DA143/13 - 9 Mafeking Avenue......................................................................................................................... 45

 

 

 

 

 

 

 


Independent Hearing and Assessment Panel Meeting 4 February 2014

52B Cliff Road, Northwood.

 

 

Subject:          52B Cliff Road, Northwood.    

Record No:    DA98/287 - 44845/13

Division:         Environmental Services Division

Author(s):      Peter Walker 

 

 

 

Property:                     52B Cliff Road, Northwood.

 

DA No:                                    287/1998 

 

Date Lodged:              15 July 2013

 

Cost of Work:              Not applicable

 

Owner:                                    I H Rozenauers

 

Applicant:                    Inga Rozenauers

 

DESCRIPTION OF PROPOSAL TO APPEAR ON DETERMINATION

S96 Modification to Development Consent DA 98/287 relating to the swimming pool design to the dwelling house on Lot 74, DP1137677.

ZONE

R2 - (Low Density Residential)

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 10b

STOP THE CLOCK USED

 

NOTIFICATION

Neighbours      50, 50A, 52 (lot 1), 54 & 56 Cliff     Road and Lot 1 DP 187284.

Ward Councillors            East Ward

Progress Association      Northwood Action Group

Other Interest Groups     Ingham Planning Group

 

REASON FOR REFERRAL

 

The application is referred to Council’s Independent Hearing and Assessment Panel given the history of the site, which has been the subject of recent relevant appeals to the Land and Environment Court.

 

EXECUTIVE SUMMARY

 

·         The Section 96 proposal involves amendments to the swimming pool and rear terrace of an existing dwelling house;

·         The maximum height & FSR of the approved dwelling house remain unchanged, although the footprint would increase by approximately 19m²;

·         2 submissions were received from the notification of the S96 proposal, with some valid concerns raised;

·         No objections were raised from the internal referrals;

·         The proposal does not comply with a number of DCP requirements;

·         The proposal is inconsistent with the most recent Land & Environment Court judgement on    the site; and

·         Consent for the modification is not supported.

 

SITE

 

The subject site is a battleaxe block located at the south-eastern side of Cliff Road, Northwood.  The site slopes steeply away from Cliff Road and incorporates two cliff faces to the western and eastern ends of the site.  A dwelling house on the site is in its final stages of construction with a swimming pool and alterations to a deck yet to be completed.  The subject site is adjoined by Gore Creek Reserve to the south east, one & two storey dwelling houses to the north, a new two storey dwelling house to the west and vacant lot to the south.

 

The owner of the subject site also owns two of the adjoining properties at 52A and 52C Cliff Road. 

 

The topography of the site is steep with the proposed swimming pool (the subject of this amendment) located on a sandstone shelf. The shelf is adjacent to a cliff edge which drops away to the reserve below and to the east.  (Site Plan and Notification Plan are shown attached as AT-1 and AT-2).

 

PROPOSAL

 

The applicant proposes the following modifications:-

 

  1. The pool be reduced in size from the approved 6.0m x 4.2m (stamped DA drawing No. 1116-A1.1) to 5.5m x 4m;

 

  1. Rotate the orientation of the pool 90 degrees from an east west orientation to a north south orientation, and relocate the pool an additional 2.53m to the east, closer to the cliff edge; and

 

  1. Enlarge the area of the rear terrace by approximately 19(4.2m x 4.5m).  

 

PREVIOUS APPROVALS/HISTORY

 

10 November 1998

 

Development Application No. 287/1998 for the construction of a two storey dwelling house with basement car park, storage area and an above swimming pool was lodged with Council.

 

2 February 2000

 

The development application was refused under delegated authority for the following reasons:-

 

1.    The proposal contravenes the objectives of the Lane Cove Local Environmental Plan 1987;

2.    The proposal contravenes Council’s Building Policy Code;

3.    The proposal is an overdevelopment of the site;

4.    The proposal will have a detrimental effect on the amenity of the neighbourhood;

5.    The proposal contravenes State Environmental Policy No. 56; and

6.    The public interest.

 

 

2 March 2000

 

A Section 82A Review application was lodged with Council.

 

24 October 2000

 

The development application was conditionally approved by Council (shown attached as AT-3).

 

22 March 2002

 

The applicant lodged an appeal in the Land and Environment Court to delete conditions 3(a) and 3(c) of the development consent relating to the requirements for dilapidation reports and the indemnity insurance requirements for the proposed works.

 

The Court issued an order to delete the conditions and replace with new conditions (shown attached as AT-4).

 

18 February 2008

 

A Section 96 application was conditionally approved by Council. The application sought amendments to the design of the house and the location of the pool.

 

28 April 2008

 

The applicant lodged an appeal in the Land and Environment Court against Council’s conditions of consent. The Court upheld the appeal and imposed conditions specific to the proposed pool of the development consent DA 98/287 (shown attached as AT-5).

 

15 July 2013

 

The current s.96 application was lodged with Council in September 2013.

 

 

PROPOSAL DATA/POLICY COMPLIANCE

 

Local Environmental Plan 2009

 

Zoning:           R2 - (Low Density Residential)

 

Site Area:       1017.9m²

 

 

Proposed

Control

Complies

Floor Space Ratio

No change

0.5

-

Height of Buildings

No change to dwelling house

9.5m

-

 


Comprehensive DCP

 

Only the relevant controls will be addressed.

 

 

 

Proposed

Control

Complies

Provide for view sharing

Extension into view corridor

LEC principles

No

Deck/Balcony depth (max)

5m approx

3m unless privacy can be addressed.

No

 

 

Private Swimming Pools

 

 

Proposed

Control

Complies

Location

On elevated terrace

Behind the front building line and not on elevated decks

No

When viewed from waterways and foreshore areas

May be viewed  from some public areas

Not to adversely affect the amenity and outlook of neighbourhood.

Yes - the pool would be generally screened by vegetation

Setback to Neighbour’s House (min)

>8m

3m to waterline

Yes

Setback to boundary (min)

1.25m

1m to waterline

Yes

Height (max)

(steeply sloping sites)

2 - 2.8m

1m

1.8m on steeply sloping blocks.         

No

Setback from boundary if coping is above ground level (existing)(min)

900mm

Coping to be set back at a ratio of 1:1 (2m - 2.8m setback is required )

No

Setback from trees >5m in height (min)

Cheese tree >5m

3m

No – However the applicants have mentioned they wish to retain this tree and Councils Tree Assessment Officer has stated in informal discussion that the tree is not significant.

Location of pool pump/ filter

Required as a  condition of consent

As far as practical from neighbouring properties.

Already a condition of consent

 

 

REFERRALS

 

Manager Urban Design and Assets – 31 July 2013

 

No objections raised.

 

Manager Parks – 3 September 2013

 

Council’s Senior Tree Preservation Officer has reviewed the application and has advised that he has no objection to the proposed changes from an arboriculture perspective. The allotment is Sydney Harbour Foreshore DCP affected but the pool area would be screened by the existing tree line behind the site. This application would not require specific tree protection measures or Conditions of Consent. However as a matter of precaution suggested conditions would be imposed in the event the application was to be approved.

 

Manager Bushland – 3 September 2013

 

The Manager of Bushland reports that the property is not affected by Development Control Plan Part H for Bushland

 

Rural Fire Service

 

Not consulted as this matter is already the subject of appropriate conditions on the original consent.

 

Other (Heritage, Traffic, Waterways)

 

Not applicable

 

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

 

The proposal has been assessed in relation to the relevant matters under s.96 (2) and (3) of the Act as discussed below.

 

S.96(2)(a)  Is the modified development substantially the same?

 

Yes: The s.96 application proposes changes to a development consent for ‘construction of a two storey dwelling house with basement car park and storage area’ originally approved on 24 October 2000 and as amended by the Land & Environment Court on 29 April 2008.

 

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 as a result of the proposed modifications.

 

S.96(2)(c)  Notification of application to modify consent

 

The original DA was advertised in accordance with Council’s policy and the relevant Regulation and submissions were received. The current s.96 application has been renotified to relevant property owners, ward Councillors and relevant community groups.

 

S.96(2)(d)  Considerations of submissions

 

The submission period closed and submissions from two properties were received.

 

S.96(3) Assessment of the proposed modifications

 

An assessment of the proposal is required in relation to s.79C(1) of the Act. This assessment follows.

 

 

 

 

Proposed modifications:-

 

  1. The pool will be reduced in size from the approved 6m x 4.2m (stamped DA drawing No. 1116-A1.1) to 5.5m x 4m.

 

Comment

 

No planning objection is raised to this part of the proposed modifications. (It should be noted that there are some discrepancies between the approved DA plans and the s.96 plans submitted. The most recent stamped & approved plan on Councils file, ‘Drawing No. 1116-A1.1’ is at a scale of 1:200 and indicates a pool 6m x 4.2m. The plans with the current s.96 appear to indicate an approved pool of 6.25m x 4.75m) and approved dimensions must prevail.

 

  1. Rotate the orientation of the pool 90o from a roughly east-west orientation to a roughly north-south orientation, and relocate the pool 2.53m to the east, closer to the cliff edge. 

 

Comment

 

Whilst no objection is raised to the reorientation of the pool to a north south alignment, the relocation eastward is problematic as the pool, with its balustrade would encroach into the narrow view corridor of the property of 50A Cliff Road. 

 

Commissioner Brown of the Land & Environment Court considered the matter important in the appeal No.10841 of 2001 with the following findings:-

 

 Paragraph13:

 

“The loss of views is an important matter, particularly with the recent trimming of the trees. In their consideration of the s 96 application, the council imposed a requirement that reduced the easterly extension of the pool by 2.5 meters. This was an amendment endorsed by Ms Walkerden. With the benefit of the site view and an understanding of the location of the pool deck, I agree that this is an appropriate requirement even if not for the same reasons imposed by the council. The increased setback will maintain an unrestricted view corridor from parts of the lounge room of the Walkerden dwelling to Gore Creek and Lane Cove River and the important land water interface. While reduced views will be available across the new pool deck, I accept that the significance of these views is diminished because of the new pool deck and the likely activities on this area.”

 

The court found the views from parts of the lounge room of the Walkerden dwelling important and

there is no reason for Council to find otherwise.

The encroachment of the pool and its associated structure eastwards closer to the edge of the cliff (escarpment) is also questionable. The property is within the Sydney Regional Environmental Plan 2005 (Sydney Harbour Catchment) and to construct close to the edge of what could best be described as a cliff also raise issues of increased visual impact (albeit partially screened by trees) and possible structural issues.  

 

  1. Enlarging the area of the rear terrace approximately 19(4.2m x 4.5m).

 

Comment

 

Elevated decks above 1m above existing ground level are routinely restricted to 3m in depth (unless privacy issues can be addressed). The relocation of the pool to the east as proposed would increase the area of the elevated rear terrace with this trafficable area 2.8m from the property boundary. Whilst it is acknowledged the approved pool was approved closer to the boundary (1.4m to coping & 2m to waterline) this was only after the coping had been reduced to discourage people from congregating in this location.

 

Commissioners Browns finding stating:-

 

Paragraph 12:

 

“I am satisfied that the separate distance between the pool deck and the Walkerton dwelling is sufficient to not create unacceptable overlooking impacts. I agree that the reduction in the pool coping is a positive step to further reducing any potential overlooking. It is also relevant to take into account the size and location of the proposed deck. It is located at a greater distance from the Walkerden property than the pool and its size and orientation will clearly encourage the congregation of people in this location rather than the pool coping and the attractive water views in the opposite direction to the Walkerton property.”

 

The Court was sufficiently concerned by people congregating 1.5m – 2m from the boundary in this area and to state that the reduction in pool coping was a positive step. The relocation of the pool would result in the deck extending closer to the northern side boundary and would not solve the privacy issues the Court acknowledged. 

 

Lane Cove LOCAL Environmental Plan 2009 (Section 79c(1)(a))

 

In accordance with LEP2009, the site is zoned R2 Low Density Residential, with a maximum floor space ratio of 0.5:1 and a maximum height of 9.5m. The S.96 proposal is for modifications to the pool & rear terrace ancillary to a dwelling house. Dwelling houses are listed as development permissible with consent in the R2 zone in accordance with the Land Use Table within LEP2009. The proposal has been assessed under the relevant provisions of LEP2009, and is neither contrary to the aims of the Plan, nor the aims, objectives and controls relating to the R2 Low Density Residential zone. There are no other departures from the statutory requirements of LEP 2009.

 

Other Planning Instruments

 

Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005

 

The SEPP requires Council to make an assessment of the impact of any development when viewed from the Harbour/foreshores. In this regard the proposal is extending the approved terrace & pool to the east and closer to the cliff edge. The existing terrace is reasonably well screened by existing trees and the modifications would only make the pool slightly more noticeable from the Harbour reserves.

 

The plan also lists matters to be taken into consideration in relation to the maintenance, protection and enhancement of the scenic quality of foreshores and waterways. 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;

(ii)   the adjoining land; and

(iii)  the likely future character of the locality.

 

Development should maintain, protect and enhance the unique visual qualities of Sydney Harbour and its islands, foreshores and tributaries. It is considered that whilst the amended proposal may be visible from the harbour foreshores and adjacent reserves, the impact of the amended proposal would be relatively minor and acceptable.

 

 

Sydney Harbour Foreshores and Waterways Area Development Control Plan 2005.

 

The Gore Creek area is classified as Landscape Character Type 9, with the character of the area including natural foreshores interspersed with more developed areas. The performance criteria requiring development to protect remaining natural features such as rock outcrops etc, maintain the existing lines of those features, and, colour schemes which should match native vegetation. In this regard the proposed modifications, would locate the pool closer to the cliff edge rather than away.

 

As the property is located at some distance from Sydney Harbour proper, (as part of Gore Creek was resumed for the recreation reserve), the overall impact of the proposed modifications would not warrant rejection on this issue alone.

 

State Environmental Planning Policy No 55 – Contaminated Land.

 

Clause 7 of SEPP 55 requires Council to consider whether the land is contaminated. Notwithstanding the fact that site investigations have not been carried out, the current and previous use of the site and adjoining sites for residential uses would substantially reduce the possibilities of contamination. Accordingly it is considered that contamination of the site is unlikely. 

 

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

 

Not applicable.

 

APPLICABLE REGULATIONS

 

Environmental Planning and Assessment Regulation 2000

 

The proposal involves some minor demolition work to the terrace. Clause 92(1)(b) of the Regulation requires Council to consider the provisions of Australian Standard AS 2601-1991: The demolition of structures.  The matter was addressed by conditions of consent, which have been included in the original consent.

 

Variations to Council’s Codes/PolicIes (seCTIONS 79c(1)(a), (1)(b), and (1)(c))

 

The preceding policy assessment table identifies those controls that the proposal does not comply with. Each of the departures is discussed below.

 

 

Development Control Plan 2009 

 

1)    Provide for view sharing

 

Requirement  - Planning principles of Land & Environment Court (LEC).   

 

Proposed  -  Extension into view corridor.

 

Comment

 

The extension of the pool would adversely impact the water views of the owners of 50A Cliff Road. The Land & Environment Court has recognized a view exists from the lounge room.

 

Using the principles set out by the LEC (Tenacity Consulting v Waringah [2004] NSWLEC 140) and paraphrased:-

 

Step 1 - Assessment of views to be affected. The court has stated water views are valued more highly than land views. Iconic views (eg of the Opera House, the Harbour Bridge or North Head) are valued more highly than views without icons. Whole views are valued more highly than partial views, eg a water view in which the interface between land and water is visible is more valuable than one in which it is obscured.

Comment

 

 From the lounge room window of 50A Cliff Road a water view was noted on the site inspection, although the land-water interface was not clearly defined (this may be as a result of seasonal changes in the surrounding vegetation). 

 

Step 2Consideration of what part of the property the views are obtained. (Views across side boundaries are more difficult to protect that of views from front and rear boundaries). If the view is enjoyed from a standing or sitting position is relevant. (Sitting views are more difficult to protect than standing views). The expectation to retain side views and sitting views is often unrealistic.

Comment

 

The view in question is across a side boundary, which would lessen the importance of the view loss according to the above guidelines   

 

Step 3 - Assessment of the extent of the impact. This should be done for the whole of the property, not just for the view that is affected. The impact on views from living areas is more significant than from bedrooms or service areas (though views from kitchens are highly valued because people spend so much time in them). The impact may be assessed quantitatively, but in many cases this can be meaningless. It is more useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating.

 

Comment

 

The view in question is from a living room and is the only water view the owners of 50A Cliff Road have. It can be seen standing and sitting in certain positions. Although subjective, the impact would be severe.    

 

Step 4Assessment of the reasonableness of the proposal that is causing the impact. A development that complies with all planning controls would be considered more reasonable than one that breaches them. Where an impact on views arises as a result of non-compliance with one or more planning controls, even a moderate impact may be considered unreasonable.

 

Comment

The amended proposal breaches several DCP requirements therefore the impact could be considered as unreasonable under this guideline.

 

Summary

 

Based on these four criteria, despite the view being across a side boundary, on balance, the view impact is significant and unreasonable.    

 

2)    Deck/Balcony depth (max)

 

Requirement  - 3m maximum unless privacy can be addressed

 

Proposed  - 5m

 

Comment

 

The terrace would be 5m wide between the rear of the house and new pool location. The LEC identified a privacy concern although at the present time a hedge does exist on the subject site. This hedge could easily be removed and a privacy issue may arise. If the application was to be approved, the inclusion of privacy screening may be an option considered appropriate.

3)    Pool location

 

Requirement  - Behind the front building line and not on elevated decks

 

Proposed  -  Behind building line but is on an elevated terrace

 

Comment

 

The approved pool is already on an elevated terrace however the relocation to the rear would result in the existing non compliance being increased.

 

4)    Pool height (maximum)

 

Requirement  - 1m maximum  - 1.8m permitted on steeply sloping blocks. 

 

Proposed  -  2m – 2.8m

 

Comment

 

The approved pool (at approximately 2m above ground) does not comply with the requirement. The proposed variation would increase the non compliance by a further 800mm at its worst point.

 

5)    Setback from boundary if coping is above ground level

 

Requirement  - Coping to be set back at a ratio of 1:1  (2m - 2.8m setback is required)  

 

Proposed  -  900mm

 

Comment

 

The existing pool does not comply with this requirement, the proposed modification would increase the non compliance even further.

 

 

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

 

Submission from two (2) adjoining property owners were received in response to the notification of the development application. 

 

The applicants did respond to issues raised by the neighbours in a letter received 19 August 2013. These comments have been included in the discussion where it is considered appropriate.

 

The issues raised in the submission can be summarised as follows.

 

54 Cliff Road, Northwood.

 

1)    Moving the pool over open space outside the approved building envelop would be further overdevelopment of site.

 

Comment

 

No increase in floorspace is indicated although the proposal will enlarge the terrace/pool area. This is over an existing hard surface area, a sandstone shelf. The increase is less than 20m² however there appears to be incremental increase in coverage of the site which is not desirable.         

 

2)    Moving the pool closer to the edge of the cliff would have considerable geotechnical risk to the stability of the cliff from the load of the pool.

 

Comment

 

The applicants have stated that Geotech Engineers have assessed the proposal on several occasions. Any approval would require a condition for a fresh report to be provided for any Construction Certificate.

 

3)    The pool would appear as a large intrusive structure well above the existing ground level and would adversely impact visual amenity.

 

Comment

 

The neighbors have objected to the appearance of the structure supporting the pool. It is noted that the area has some screening vegetation however if the application was to be approved further conditions could be required to improve the appearance of the structure from adjoining properties.

 

4)    The application appears to gradually exceed the outline of the approved building.

 

Comment

 

It would appear that the current application is seeking to incrementally increase the development on the site by extending the pool to the east which was not allowed by the LEC.

 

50A Cliff Road

 

1)    The proposed development would adversely impact on the extent and quality of water views from the living room. 

 

Comment

 

As discussed within this report, it is considered the proposal would impact the only water view the owners of 50A Cliff Road have. The LEC recognized this view in its judgment and the impact is significant. The applicant has responded that there is no impact, this is not agreed with. A site inspection to 50A Cliff Road would confirm this.           

 

2)    The proposal does not comply with the Development Control Plan requirements for pools.

 

Comment

 

Agreed, the proposed modifications exacerbate existing non-compliances with the Development Control Plan as mentioned previously in this report. The applicant has not provided any justification for proposed changes and the non compliances. 

 

3)    The proposal would depart from the Land and Environment Court findings with respect to view and privacy impacts in a previous appeal on the site.

 

Comment

 

As addressed within this report, Commissioner Brown identified privacy and view loss issues in the appeal No.10841 of 2001, with the pool and terrace approved to a particular design. The current proposal is not in accordance with the judgment and should not be supported.     

 

 

CONCLUSION

 

The application for modification of consent has been assessed in accordance with matters for consideration outlined in Section 96 and section 79C of the Environmental Planning & Assessment Act 1979, and having regard to all of the relevant instruments and policies. The proposal generally complies with the objectives of the Sydney REP (Sydney Harbour Catchment) 2005, Sydney Harbour Foreshores and Waterways Area DCP 2005 & Lane Cove Local Environmental Plan 2009.

 

The proposal however, does not comply with the principles of view sharing. A number of non compliances with Lane Cove DCP 2009 are further exacerbated by the proposal. The proposal also goes against the findings of Commissioner Brown in the appeal No.10841 of 2001 Fegan v Lane Cove Council (2008) NSW and would adversely impact the reasonable views of an adjoining property. Accordingly, the application is not in the public interest and recommended for refusal, for the reasons listed below.

 

 

RECOMMENDATION

 

That pursuant to Section 80(1)(b) of the Environmental Planning & Assessment Act 1979, as amended, the Independent Hearing and Assessment Panel refuses the s96 modification to Development Consent DA 98/287 relating to the swimming pool design to the dwelling house on Lot 74, DP1137677, for the following reasons:-

 

 

  1. The proposal does not comply with the requirements for swimming pools in the Lane Cove Development Control Plan 2009;

 

  1. The unacceptable impact to views of No 50A Cliff Road, Northwood; and

 

  1. The proposal fails to adequately consider the findings of the Land and Environment Court case Fegan v Lane Cove Council (2008) NSWLEC 1171.

   

 

 

 

 

 

Michael Mason

Executive Manager

Environmental Services Division

 

 

ATTACHMENTS:

AT‑1 View

Neighbour Notification Plans

1 Page

 

AT‑2 View

Site Location Plans

2 Pages

 

AT‑3 View

Letter of determination dated 24 October 2000

8 Pages

 

AT‑4 View

Land and Environment Court Order No. 10841 of 2001

9 Pages

 

AT‑5 View

Fegan v Lane Cove Council (2008) NSW LEC 1171

9 Pages

 

 

 


ATTACHMENT 1

Neighbour Notification Plans

 


ATTACHMENT 2

Site Location Plans

 



ATTACHMENT 3

Letter of determination dated 24 October 2000

 









ATTACHMENT 4

Land and Environment Court Order No. 10841 of 2001

 










ATTACHMENT 5

Fegan v Lane Cove Council (2008) NSW LEC 1171

 










Independent Hearing and Assessment Panel Meeting 4 February 2014

Supplementary Report to Development Application DA143/13 - 9 Mafeking Avenue

 

 

Subject:          Supplementary Report to Development Application DA143/13 - 9 Mafeking Avenue    

Record No:    DA13/143-01 - 4362/14

Division:         Environmental Services Division

Author(s):      May Li 

 

 

EXECUTIVE SUMMARY

 

The proposed development for a residential flat development at 9 Mafeking Avenue, Lane Cove DA 13/143 was considered by Lave Cove Independent Hearing and Assessment Panel (LC IHAP) at its meeting of 3 December 2013.  Shown attached as AT-1.

 

The applicant Winim Developments Pty Ltd lodged a late submission to the Panel on 2 December 2013, shown attached as AT-2.

 

The Panel deferred consideration of the proposed development and resolved:-

 

“That the Lane Cove Independent Hearing and Assessment Panel defer this development application for a further report that considers the applicant’s submission of 2 December 2013 and Power Point presentation provided at the public meeting.”

 

Subsequent to the IHAP meeting, a meeting between the Council development team and the applicant was held at Council on 12 December 2013.

 

One issue relating to the number of car parking spaces in the basement was resolved. 

 

Other issues such as compliance with FSR (2:1) of the draft LEP, accessibility requirements of the DCP, the car parking design standards, traffic management and landscaping remain unresolved. 

 

No further amended plans have been submitted to Council since the IHAP meeting of 3 December 2013. 

 

However, the applicant advised Council on 22 January 2014 that the proposal is currently being reviewed and they may submit amended plans to Council by 21 February 2014 for further consideration, shown attached as AT-5.

 

As a result of the meeting of 12 December 2013 and verbal advice that the applicant seeks to lodge further amended plans which would not comply with the stated FSR of the Draft LEP, the Panel is requested to determine the application.

 

RESPONSE TO THE APPLICANT’S SUBMISSION

 

Council assessment staff have reviewed all issues raised in the applicant’s late submission and their presentation addressed to IHAP and provides the following response:-

 

The late submission included an area of open space on roof top terrace (approximately 166.7m2), open area and deep soil.

 

Building Height

 

A roof terrace has been included as additional open space, shown attached as AT-2, Open Area/Deep Soil Diagram.  Structures associated with the roof top terrace such as balustrades, lift over runs and landscaping elements would increase the height of the proposed building.  However, these structures have not been shown on any plans submitted. Any increase in building height has not been confirmed in the submission. 

 

Floor Space Ratio (FSR)

 

Lane Cove Local Environmental Plan 2009 (LEP) was notified (gazetted) in February 2010. The LEP included building height and FSR development standards which were imposed by the Minister of Planning and is considered not to be a combination (height and FSR) for viable development on the site. 

 

Council in 2012 submitted a planning proposal to amend the LEP’s current FSR (4.1:1) and inconsistent height (12 metres) within the precincts around the intersection of Pacific Highway and Longueville Road. The planning proposal would allow for:-

 

a)   8-storey apartment buildings at the corners of the LGA’s “gateway” on Pacific Highway;

 

b)   6-storey apartment buildings on the north side of Longueville Road, to allow for redeveloping ageing flats south of the interface with a medium-density zone in Kara Street and shadows would fall on the roadway. Three sites with 1930s block of flats have been resolved to be removed from the heritage register in a separate planning proposal;

 

c)   An FSR of 2:1 as it is appropriate on a main road in the context of the Lane Cove Town Centre:-

§ retail-commercial (2:1 /shoptop housing 2.5:1);

§ the 1-5 Little Street mixed use zone (2.7:1);

§ Finlayson/Birdwood R4 precinct (1.7:1);

§ the R3 zone in Kara St (0.7:1); and

§ the low density zone in Mafeking, Gatacre and Allison Avenues (0.5:1).

 

It is also noted that in the Willoughby Local Government area opposite the subject site and referenced in the applicant’s Power Point presentation to the IHAP dated 3 December 2013, the FSRs vary from 1:1 (predominant in the Artarmon industrial area) to 1.7:1 (apartments directly opposite the Pacific/Longueville intersection).

 

On 14 March 2012 Gateway approval was received to exhibit the proposed changes to the LEP, relevant to this and surrounding sites.  The draft instrument was exhibited, reported to Council where it was supported and submitted to the Department of Planning for gazettal.  Accordingly, it is considered that the planning proposal is very advanced in terms of the process and awaits gazettal with the Department. 

 

A recent letter from the Department of Planning has, however, advised Council that the amended LEP is currently under review.  Shown attached as A-T3.

 

Comment

 

The Environmental Planning and Assessment Act 1979 (EP&A Act) requires that any draft planning instrument be taken into consideration during an assessment process.  It is understood that the more imminent a planning proposal, greater should be the weight given to that instrument. The applicant has relied upon this is submitting the application with a height (23.6m) well in excess of the current LEP 12m height control.

 

 

The proposed FSR of 2.4:1 would be excessive as it yields a building which:-

 

·    Would not allow enough space for sufficient deep soil landscaping and would not provide adequate space for reasonable vegetation, particularly large and medium sized trees; and

·    Would not meet the building setback and separation requirements which would not provide adequate acoustic and visual privacy.

 

The proposed FSR would not meet the objective of the FSR standard which is to ensure that the bulk and scale of the development is to be compatible with the character of the locality.  

 

It would result in the proposed deep soil area being significantly below the minimum 25% site area requirement of the Lane Cove Development Control Plan (DCP).  The objectives of the landscaped area of the DCP are:-

 

·    providing privacy and amenity;

·    retaining and providing significant vegetation, particularly large and medium sized trees and providing continuous vegetation corridors; and

·    assisting with management of the water quality and water table.

 

It is considered that the proposal fails to meet the objectives of the FSR, provisions of the draft LEP and the landscaping provisions of the DCP.  This site is the first site to be redeveloped under the new LEP and would set the context and standard for following applications.  For these reasons, an exception to the FSR standard of the draft LEP is not supported as it would result in a development with poor planning outcomes.

 

Given that the Department of Planning has advised that the Draft LEP is under review, the Panel may consider the status of the Draft LEP is less than certain and consider this application demonstrably non-compliant with the LEP.

 

Building Setbacks

 

North Western Boundary

 

The proposed setback to the western boundary adjoining site at 6-8 Longueville Road is 6m from Ground Level to Level 2 which meets the minimum 6m side setback requirement of the DCP. 

 

However, the existing building at 6-8 Longueville Road has a minimum setback of 4.5m to the adjoining boundary of the subject site.  The building separation between the proposed building and the building on the adjoining site would be 10.5m which would be less than the minimum 12.0m separation recommended by the Residential Flat Building Design Code under State Environmental Planning Policy 65 (SEPP 65).

 

The application in this circumstance meets the minimum side setback requirement of the DCP, however does not consider additional setback having regard to the setback of the existing building on the adjoining site. 

 

South Eastern Boundary

 

The minimum setback of the proposed building to the eastern boundary adjoining 398 Pacific Highway, Lane Cove is 4.4m. 

 

A development application (DA 13/205) for the construction of a residential flat building comprising 123 dwellings at 390-398 Pacific Highway, Lane Cove was lodged with Council on 20 December 2013.  The setback of the proposed building on the Ground Level to Level 6 is 8.8m to the adjoining boundary of the subject site.  Refer to the attached Plan (AT 4). 

The minimum building separation between the proposed building on the subject site and the adjoining site to the east is 13.2m.  The proposal meets the minimum 12m building separation for buildings up to 4 storeys.  However it fails to meet the minimum 18m building separation for buildings up to 8 storeys.  The proposed building on the adjoining site has no additional setback given that the proposed building on the subject site has a side setback less than minimum setback requirement of the DCP.  Amenity with regard to privacy for future residents would not be achieved for the two developments. 

 

Landscaping

 

The late submission states that the proposed deep soil area is 162m2 which is 8.1% of the site area.  It is noted that the submission includes the hard paved area of the pedestrian ramp at the Pacific Highway entry area and the OSD in the deep soil area calculation.

 

The deep soil area has been reviewed and confirmed to be 79m2 which is 4% of the site area. The Residential Flat Design Code (RFDC) states deep soil zones have environmental benefits, which include promoting healthy growth of large trees with large canopies, allowing infiltration of rain water to the water table and reduction of stormwater runoff. 

 

A minimum open space area of 25% of a site is required to be a deep soil zone as a rule of thumb in RFDC (Site Configuration – Deep Soil Zones). 

 

The proposed deep soil area is significantly below the minimum requirements of the DCP and SEPP 65.

 

Excavation

 

The excavation for the construction of the proposed basement encroaches into the setback area by more than 2m which would result in the deep soil area being significantly below the minimum 25% requirements of the DCP and RFDC. 

 

Accessibility

 

Relevant standard AS 4299 states where letter boxes are centrally located in residential estate developments, they should be adjacent to the street entry.  Letter boxes should be located on a hard standing area connected to an accessible pathway to the adaptable housing units.

 

The submission confirms that the address of the proposed development would be Mafeking Avenue. The position of the proposed letter boxes is at the driveway entrance to Basement 2 and does not have a pathway to the adaptable units.  Residents would be required to travel down the lift across to the entry, exiting lanes and through a pedestrian doorway in the basement to the letter boxes.  The preferred position for the letter boxes should be at the main lobby area at Pacific Highway.

 

The bathrooms in the adaptive dwellings are required to meet the AS 4299 regardless of the present or perceived future occupant. 

 

Traffic Management

 

Council traffic engineers have confirmed their concerns raised in the original assessment report:

 

The applicant must satisfy Council concerns that traffic originating from the development may worsen the performance of nearby signalised intersections, leading to unacceptable levels of delay and poor transport amenity for residents and the wider travelling public.

The two intersections that are of particular concern are Osborne Road/Pacific Highway and Howarth Road/Pacific Highway.  If it cannot be demonstrated that the impact of the subject development traffic is acceptable, then suitable mitigation measures should be proposed.

 

These mitigation measures may include:-

 

·    Travel Access Guides for new residents;

·    Increased provision of bicycle parking;

·    On-site car share provision;

·    Greater proportion of affordable housing;

·    Reduced scale of development;

·    The applicant must satisfy Council concerns that the disabled parking provision does not comply with the relevant Australian Standard 2890.6; and

·    The applicant must satisfy Council concerns that the visitor and resident bicycle parking does not comply with Councils DCP and the relevant Australian Standard 2890.3.

 

The submission has not addressed any of the above concerns. 

 

Car Parking

 

The number of car spaces in the basement has been reviewed. It is confirmed that there are 93 car spaces and a car wash bay proposed which meets the minimum number of car space requirements of the DCP.

 

However, the car parking design does not meet AS2890.6 relating to disabled car spaces.  The share zones for 3 disabled car spaces do not meet the standard and the compliance with the standard may result in an overall reduction of car spaces in the basement. 

 

Section 94 Contribution

 

A Direction issued by the Minister for Planning on 7 June 2010 (Section 94E) under the Environmental Planning and Assessment Act 1979 states that a Council as a consent authority must not impose a condition of development consent under section 94(1) or 94(3) of the Act requiring the payment of a monetary contribution that exceeds $20,000 for each dwelling by the consent. 

 

A review of the S94 contribution has been carried out and the S94 contribution for 3 bedroom dwellings in the development has been calculated so that it does not exceed $20,000 per dwelling.  The calculation of 1 bedroom and 2 bedroom dwellings would remain unchanged as they are below the $20,000 cap. 

 

CONCLUSION

 

The applicant’s submission has not addressed the fundamental issues raised in the original assessment report regarding the non-compliance with the FSR of the draft LEP, the car parking, side setback and the landscaping requirements of the DCP.

 

The footprint and of the basement is excessive and would result in insufficient deep soil for planting trees along the boundaries of the site.

 

The applicant has not addressed the concerns regarding trip generation impacts on the two intersections with Pacific Highway – Osborne Road and Howarth Avenue – in the AM peak.

 

The applicant’s S94 contribution calculation is acceptable and the contribution of 3 bedroom dwellings would not exceed $20,000 per dwelling if IHAP approves the application. 

 

 

 

 

RECOMMENDATION

 

THAT pursuant to Section 80(1)(b) of the Environmental Planning and Assessment Act, 1979, as amended, the Independent Hearing and Assessment Panel refuses development consent to Development Application DA 13/143 for the Construction of a residential flat building comprising 58 dwellings with basement for 93 cars on Lot 10, 11 and 12 of DP 1056023 and known as 9 Mafeking Avenue, Lane Cove for the following reasons:-

 

1.         The proposal fails to meet the aims of Lane Cove Local Environmental Plan 2009.

 

Particulars:-

 

a.   The proposed building would not be compatible with the environmental character of the locality.

 

b.   The proposal would not have a sympathetic and harmonious relationship with the adjoining developments.

 

c.   It fails to meet the requirements of accessible dwellings.

 

2.         The proposal exceeds the FSR standard of the draft LEP.

 

Particulars:-

 

a.   The proposed development has an FSR of 2.4:1 which exceeds the maximum permitted FSR of 2.0:1 in accordance with the draft Lane Cove Local Environmental Plan.

 

b.   The draft LEP is imminent and close to gazettal and the standards of the draft LEP should be complied with.

 

c.   The proposal exceeds the maximum permitted GFA of the draft LEP by approximately 798m2, which would unreasonably increase the bulk and scale of the building structure and would be an over development of the site.

 

d.   The additional dwellings from the excessive GFA require additional on site car parking spaces and have resulted in a larger basement car park footprint, reducing deep soil landscaping opportunities. 

 

e.         The proposed building is excessive in building bulk and scale. 

 

3.         The proposal fails to meet the objectives of Lane Cove Development Control Plan.

 

Particulars:-

 

a.   It does not meet the side setback requirements and would create poor amenity for future occupants and the residents of the adjoining properties.

 

b.   The proposal provides insufficient deep soil areas for large trees on the site and would not create a positive contribution to the streetscape.

 

c.   The proposal fails to provide a sufficient number and type of car spaces for the proposed dwellings and would create adverse impact upon on street parking in nearby residential streets. 

 

d.   5 of the disabled car spaces do not meet the AS2890.6.

 

e.   It fails to meet the accessibility requirements of the DCP relating to the location of letter box and the design of adaptable dwellings. 

 

4.         The proposal design fails to meet 5 out of 10 design principles of the Residential Flat Building Code under State Environmental Planning Policy 65 – Design Quality of Residential Flat Development (SEPP 65).

 

Particulars:-

 

a.   The design fails to meet the principle of context as it has no respect for the adjoining properties to the south east and west.

 

b.   The design fails to meet the principle of scale as the proposed building would impact on the privacy and solar access potential of the site to the south east and the privacy of the property to the west. 

 

c.   The design fails to meet the built form principle as the building is too wide.

 

d.   The design fails to meet the landscaping principle as the car parking footprint occupies nearly the entire site and there is insufficient deep soil for large trees to grow along Longueville Road.

 

e.   The design fails to meet the principle of amenity as the proposed building would impact on the privacy and solar access of the adjoining sites. 

 

5.         There is insufficient information in the development application for a proper development assessment:

 

Particulars:-

 

a.   The traffic management report has not included analysis of the Pacific Highway / Osborne Road signalised intersection assessing the impact of development traffic (particularly right turners out of Osborne Rd heading east on Pacific Hwy). 

 

b.   A detailed analysis of the proposed development is required to be prepared and approved by the Roads and Maritime Services to demonstrate that there will be no adverse effects on their infrastructure (Lane Cove Tunnel). 

 

6.         The proposed development in its current form is not in public interest. 

 

a.   The proposed development would create adverse impact on the adjoining properties and would not contribute positively to streetscape.

 

b.   The valid concerns raised by the submissions.

 

*          Contrary to the objectives of the draft LEP;

*          Overshadowing impacts;

*          Overlooking impacts;

*          Excessive building bulk and scale;

*          Insufficient side setbacks;

*          Insufficient landscaping;

*          Increasing street parking demand; and

*          Non-compliances with the requirements of DCP.

 

c.         Supporting of the exception of the FSR of the draft LEP and significant variations to the landscaping and setback requirements of the DCP would undermine the DCP and set unacceptable precedents to other developments in this precinct and Lane Cove in general.

 

 

 

 

 

 

Michael Mason

Executive Manager

Environmental Services Division

 

 

ATTACHMENTS:

AT‑1 View

Original report dated 3 December 2013

23 Pages

AT‑2 View

Applicant's submission dated 2 December 2013

16 Pages

AT‑3 View

Letter from NSW Government Planning & Infrastructure dated 20 December 2013

1 Page

 

AT‑4 View

Plan of 390-398 Pacific Highway

1 Page

 

AT‑5 View

Letter from Winim requesting deferral to submit amended plans

2 Pages

 

 

 


ATTACHMENT 1

Original report dated 3 December 2013

 

Subject:          9 Mafeking Avenue, Lane Cove    

Record No:    DA13/143-01 - 58291/13

Division:         Environmental Services Division

Author(s):      May Li 

 

 


Property:                     9 Mafeking Avenue, Lane Cove

 

DA No:                                    DA 13/143

 

Date Lodged:              18 September 2013

 

Cost of Work:              $18,056,400.00

 

Owner:                                    General Computer Corp Pty Ltd

 

Applicant:                    Winim Developments Pty Limited

 

 

DESCRIPTION OF PROPOSAL TO APPEAR ON DETERMINATION

Construction of a residential flat building comprising 58 dwellings with basement car park for 93 cars

ZONE

R4 – High Density Residential

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 2b, 7a & 10b

 

STOP THE CLOCK USED

Yes – 12 days

NOTIFICATION

Neighbours      1-11, 2-4 Gatacre Ave, 2-14 Kimberley Ave, 2-10 and 15 Mafeking Ave, 11-21, 6-28 Longueville Rd, 382-398 Pacific Hwy, Lane Cove.

 

All Councillors

 

Progress Association: Greenwich Community Association, Lane Cove Alive, Osborne Park Residents Association, RASAD, Stringybark Creek Residents Association

 

 

REASON FOR REFERRAL

 

The application has been referred to the Lane Cove Council’s Independent Hearing and Assessment Panel (LC IHAP) for determination as the proposal involves the construction of a residential flat building at a prominent location, seeks significant variations to the Lane Cove Local Environmental Plan 2009 (LEP) and the draft LEP development standards, variations to the Lane Cove Development Control Plan (DCP) setback and landscaping requirements and there are significant objections to the proposal. 

 

EXECUTIVE SUMMARY

 

The original development proposal involved demolition of all existing structures on the site and construction of a residential flat building comprising 58 dwellings with basement car park for 93 cars. 

 

During the assessment process, the applicant withdrew the demolition portion of the proposal and lodged a separated development application (DA 13/166) for the demolition of the existing structures on site.  The assessment of DA 13/166 is currently in process. 

 

The site is located within R4 – High Density Residential zone and residential flat buildings are permissible within the zone. 

 

The current LEP development standard for the site relating to the building height is 12m and the floor space ratio (FSR) is 4.1:1.  These two development standards are incompatible with each other as the FSR of 4.1: 1 is not achievable within a maximum building height of 12m. 

 

A draft LEP relating to amendments to the building height (25m) and floor space ratio (2:1) for the site is currently with NSW Department of Planning for gazettal.  The department has advised Council that the gazettal of the amended LEP is imminent. 

 

Council assessment officers advised the applicant to give more weight to the development standards of the draft amended LEP during the preparation of the application given that the draft LEP was in the final stages and close to gazettal. 

 

The proposal meets the building height standard, however exceeds the FSR of the draft LEP.  The proposal has an FSR of 2.4:1 which exceeds the maximum permitted GFA by approximately 798m2 and is more than the floor area of any one level of the proposed building. 

 

The excessive GFA reflects insufficient building setbacks and a larger footprint of the basement car parking for the accommodation of the required car spaces. 

 

The proposal fails to meet the following Lane Cove Development Control Plan requirements:-

 

·              Accessibility;

·              building depth;

·              car parking;

·              setbacks;

·              excavation ;

·              number of dwellings with southerly aspect; and

·              landscaping.

 

Council’s consulting architect has advised that the proposed design does not adequately meet the design principles of the Residential Design Code (SEPP 65).  The insufficient setback and overshadowing impacts would compromise the development potential of adjoining sites which is contrary to the objectives of the design principles.  The proposed design does not comply with 5 out of 10 design principles relating to context, scale, built form, landscaping and amenity.

 

The applicant has lodged a written request for the exceptions to the development standards of the LEP and the draft LEP.

 

The request for exception to the FSR standard of the draft LEP is not supported as the additional GFA would result in an over development with poor and unacceptable setbacks and landscaping on the site. 

 

The proposed development would have insufficient deep soil area for planting of large trees.  The insufficient setback would result in insufficient building separation between the proposed building and the adjoining residential flat building at 6-8 Longueville Road and would create an unreasonable constraint for future development on adjoining sites to the east.  Supporting the variation would not achieve a better planning outcome. 

 

23 submissions from nearby residents have been received during the notification of the development proposal.  The main concerns raised in the submissions relate to the scale of the proposed development which would create adverse impacts to on street parking, over shadowing and loss of privacy to the nearby properties. 

 

The development application is recommended for refusal. 

 

SITE

 

The subject site is located at the south-western corner of Longueville Road and Pacific Highway.  It comprises three allotments including Lot 10, 11 and 12 of DP 1056023 with site area of 1997.1m2.  The site is also previously known as 2-4 Longueville Road and 400 Pacific Highway, Lane Cove. 

 

The site has an RMS (NSW Roads & Maritime Service) easement for tunnels and appurtenant structures covering the whole site below the horizontal plane at RL 88.9m.  An RMS easement for ground anchors exists below a plane at RL 90m.

 

An existing single storey commercial building is located on the site. 

 

Surrounding development comprises low rise commercial premises in an R4 zone along Pacific Highway, residential flat buildings in R4 zone along Longueville Road and dwelling houses in R2 zone towards the southern side of Mafeking Avenue.   Site Plan and Notification Plans are shown attached as AT-1 and AT-2.

 

PROPOSAL

 

The original proposal involves demolition of all existing structures and construction of a residential flat building with basement car park for 93 cars. 

 

The proposal has been amended by the deletion of the demolition portion of the application.  The applicant has lodged a separate development application (DA 13/166) for the demolition of all existing structures on the site on 17 October 2013.  The application is currently being processed. 

 

The amended proposal retains the original design for the construction of a 7 storey residential flat building comprising 58 dwellings with basement car park on two levels for 93 cars. 

 


The distribution of the dwellings is summarised in the following table:-

 

Level

1 bedroom unit

2 bedroom unit

3 bedroom unit

Total

G

5

2

1

8

1

4

4

1

9

2

4

4

1

9

3

3

4

1

8

4

3

4

1

8

5

3

4

1

8

6

3

4

1

8

Total

25 (43%)

26 (45%)

7 (12%)

58 (100%)

 

12 dwellings are designed to be adaptable.  Adaptable dwellings include 5x1 bedroom dwellings and 7x2 bedroom dwellings. 

 

92 car spaces including 13 disabled car spaces and a car wash bay are proposed in the basement comprising two levels.

 

PREVIOUS APPROVALS/HISTORY

 

Given that the proposed development would require demolition of all existing structures, any previous applications would not be relevant.

 

PROPOSAL DATA/POLICY COMPLIANCE

 

Site Area: 1997.1 m2

 

Lane Cove Local Environmental Plan 2009

 

Provisions

LEP

Draft LEP

Proposed

Compliance

Zone

R4 – High density residential

R4

Residential flat building development

Yes

Max FSR

4.1:1

2:1

2.4:1

The proposal meets the LEP standard however, does not meet the standard of the draft LEP.

Max building height

12m

25m

23.6m

The proposal does not meet the standard of the LEP however, meets the standard of the draft LEP. 

 

The building height and FSR standards in the current LEP are incompatible to each other as the FSR of 4.1:1 is unachievable within a maximum building height of 12m.  The draft LEP has amended the two standards to be more compatible to each other by lowering the FSR to 2:1 and increasing the building height to 25m.  Council officers advised the applicant to comply with the development standards of the draft amended LEP in the pre-lodgment advisory meeting prior to the submission of the development application given the draft amended LEP is imminent and close to gazettal. 

The proposal with a maximum building height of 23.6m and a FSR of 2.4:1 meets the FSR, however significantly exceeds the building height standard of the currently LEP.  It meets the building height, however exceeds the FSR of the draft LEP.

 

Lane Cove Development Control Plan

 

Part B General Controls

 

Clause

DCP

Proposed

Complies/ Comment

B3 Site Amalgamation & Isolated site

To encourage site consolidation of allotments for development in order to promote the desired urban design outcomes and the efficient use of land and to avoid the creation of isolated sites.

 

Consolidation of 3 allotments for a residential flat building development

The proposed development would not create isolated sites.

Yes

 

 

Yes

B8 Safety & security

 

Ground floor dwellings have direct access or entries from the street and at least one habitable room with windows facing the street

The building has a pedestrian entry from Pacific Highway and balconies face to Pacific Hwy, Longueville Rd and Mafeking Ave

 

Yes

 

Part C3 Residential Flat Buildings

 

Clause

Requirement

Proposed

Complies/ Comment

3.2 Density

Minimum site area 1500m2

Area of site approx 1997.1m2 

 

Yes

3.3 Building depth

18m exclusive of any balcony

 

24m

No

 

3.4 Building width

40m maximum fronting the street

31m fronting Longueville Rd

Yes

 

3.5 Setback

Front

 

Side

 

 

 

Minimum 7.5m

 

6m up to 4 storeys

 

9m for 5-8 storeys

 

7.5m with a minor encroachment

4.5m

 

4.5

 

Acceptable

 

No

 

No

3.5.3 Parking Podium Height

 

Height adjoining front boundary

 

Height adjoining east boundary

 

Height adjoining west boundary

Height adjoining rear boundary

 

 

1.2

 

 

1.2m

 

 

1.2m

 

1.2m

 

 

0.3m

 

 

Nil

 

 

0.8m

 

Nil

 

 

Yes

 

 

Yes

 

 

Yes

 

Yes

3.6 Building separation within development

9m between non-habitable rooms and blank wall to any other window, well or balcony for 5-8 storeys up to 25m

 

N/A

N/A.  There is only one building proposed on the site.

3.8 Excavation

Encroachments into setback zone of up to 2m may be permitted for underground parking structures no more than 1.2m above ground level.

 

Nil to the all site boundaries

No

 

3.9 Design of roof top area

Detailed landscape plan required for roof top area

 

No roof top terrace proposed

 

N/A

3.10 Size & mix of dwellings

Minimum 40m2

 

 

A mixture of 1, 2, & 3 bedroom dwellings should be provided

 

At least 10% of each unit type is to be provided

Minimum 51.66m2 (Unit 1.08).

 

The proposal comprises 25X1 bedroom and 26X2 bedroom and 7x3 bedroom dwellings.

1 bedroom: 43%

2 bedroom 45%

3 bedroom 12%

 

Yes

 

 

 

 

Yes

 

 

Yes

Yes

Yes

3.11 Private open space

Primary balconies - 10m2 with minimum depth 2m

Primary terrace - 16m2 with minimum depth 4m

 

Balconies meet minimum dimensions

Private terraces meet minimum dimensions

Yes

 

Yes

3.12 Number of car parking, motorcycle and bicycle spaces

 

25 x 1 bedroom dwellings = 25 spaces (25x1)

 

26 x 2 bedroom dwellings = 39 spaces (26x1.5)

 

7 x 3 bedroom dwellings = 14 spaces (7x2)

Visitor 1 per 4 dwellings = 14.5 spaces (58/4)

 

Required car parking space: 93

 

 

1 motor cycle space per 25 car spaces (4 spaces required)

 

1 bike locker per 10 dwellings (6 lockers required)

 

1 Bike rail per 12 dwellings (5 rails required.

 

 

 

 

 

 

 

 

 

 

 

 

 

92 car spaces and a car wash bay are proposed

 

4 Motor cycle spaces proposed on B1 Level

 

 

5 bike lockers are proposed in the Basement 1 & 2 levels

 

7 Rails are proposed on B2 & Ground levels

 

 

 

 

 

 

 

 

 

 

 

 

 

 

No.  A car wash bay should not be included for a car parking space

 

Yes

 

 

 

No

 

 

 

Yes

3.13 Ceiling heights

 

Minimum 2.7m

2.7m

Yes

 

3.14 Storage

 

6mper 1 bedroom dwelling

 

8m3 per 2 bedroom dwelling

 

10m3 per 2 bedroom dwelling

 

Total required= 428m3

 

50% of the storage volume within the dwelling

Designated storage areas  equivalent to 370m3  are proposed on the Basement 1 & 2 Levels

 

Internal storage areas are proposed within the dwellings.  The internal space of the dwellings would be sufficient to meet the requirements of storage volume (214m3)

 

Yes

 

 

 

 

 

Yes

 

3.15 Solar access

 

Living rooms and private open spaces of 70% of the units to receive 3 hours of direct sunlight between 9am 3pm on 21 June

 

Maximum 10% dwellings with a southerly aspect

 

76% of dwellings would receive more than 3 hours solar access (44 dwellings)

 

 

14% of dwellings have a southerly aspect (8 dwellings)

 

Yes

 

 

 

 

 

No

 

3.16 Natural ventilation

 

Minimum 60% of the dwellings should have cross ventilation.

 

 

Minimum 25% of kitchens have access to natural ventilation

 

60.3% of dwellings would have cross ventilation (35 dwellings)

 

36% of kitchen would access to natural ventilation (21 dwellings)

 

Yes

 

 

 

 

Yes

3.17 Visual privacy

 

Provide visual privacy between the adjoining properties

Privacy screens are not proposed to all windows directly facing each other in the building

 

No (the proposed building does not have sufficient separation to an adjoining residential flat building at 6-8 Longueville Rd. 

 

3.18 Communal open space

 

Minimum 25%

23% proposed

No

 

3.19 Landscaped area

25% provided at ground level and up to15% provided on structures (40% required)

4% landscaped area proposed

No

The proposed basement occupies the entire site and there is little deep soil for planting trees.

 


Part F - Access and Mobility

 

DCP

Proposed

Complies/ Comment

Adaptable housing to be provided at the rate of 1 dwelling per 5 dwellings (20%) (Minimum of 12 dwellings are required)

12 adaptable dwellings are  shown on the plans

Yes

Provide 1 accessible parking space for each adaptable housing unit (minimum of 12 spaces required)

13 accessible parking spaces provided on B1, B2 Levels car park

No.  The number of disabled car spaces meets the DCP requirements.  However, 5 disabled car spaces do not meet the design standard AS 2890.6

 

 

REFERRALS

 

Strategic Planning

 

Council’s strategic planners have provided the following advices:-

 

The proposal includes a floor space of 4791sqm which equates to a floor space ratio (FSR) of 2.4:1. The current LEP includes an FSR for the subject site of 4.1:1.

 

Relevant Planning Proposal

 

It is important to note that a planning proposal is nearing completion for the site which seeks to amend the FSR from 4.1:1 and to 2:1. The planning proposal also seeks to amend the height over the site from 12m to 25m.

 

The EPA Act requires that any draft planning instrument be taken into account when assessing a proposal.  Moreover, it is understood that the more imminent a planning proposal is, the greater the weight given to that instrument.

 

On 14 March 2012 Gateway approval was received to exhibit the proposed changes to the LEP, relevant to this site and surrounding sites. The draft instrument was exhibited, then put before Council, where it was supported, and then submitted to the Department of Planning for gazettal. Accordingly, it is considered that the planning proposal is very advanced in terms of the process and only awaits gazettal with the Department.

 

Given the progress of the planning proposal, the draft controls of 2:1 and 25m are very important in the assessment of the DA. The proposed controls aim for a built form which has taller, slimmer buildings than permitted by the existing controls which would tend to yield buildings which are short but would need to be boundary to boundary to achieve their FSR.

 

The proposal’s height of 23.6m far exceeds the existing control (12m) and is just under the draft control (25m). The proposed FSR (2.4:1) meets the existing control (4.1:1) but exceeds the proposed control (2:1). The new controls work in tandem to produce a certain built form outcome. Picking and choosing between current and draft controls is not supported as the worst case scenario results in a taller, wider building.

LEP Objective of the Floor Space Ratio Control

 

In the LEP, the objective of the floor space ratio controls is to:-

 

“to ensure that the bulk and scale of development is compatible with the character of the locality.”

 

It is acknowledged that the objectives is difficult to apply in this case as the area along this portion of the Highway is in transition and is also adjacent to a low density residential zone. However, the bulk and scale cannot be said to be compatible with the locality which includes a leafy character and substantial building separation/setbacks.

 

Proposed FSR and DCP Compliance

 

The proposed FSR is considered to be excessive as it yields a building which:

 

-           Does not allow enough space for substantial deep soil landscaping.

-           Does not meet building setback and separation requirements.

 

The DCP requires landscaped area, including 25% deep soil landscaping. The proposal includes 7% deep soil area, which is substantially below the DCP requirement. The lack of setbacks for the basement levels appears to be the main contributor to the omission of deep soil area. Deep soil area allows the planting of substantive vegetation which softens the appearance of a building and enhances Lane Cove’s leafy character and assists in stormwater absorption.

 

It is not only the almost boundary to boundary basement breaching the setback requirements, it is also the residential levels. The building is non-compliant with the southern setback requirements for levels 1-4, and then both the western and southern building facades protrude into the setback requirement from level 5 and above. (This is further discussed later in the report under Variations to Council’s Codes/Policies.

 

Conclusion

 

The height and FSR included in the planning proposal are highly relevant to the proposed development and operate together. That is, a combination of existing and draft control cannot be supported.

 

The proposed FSR exceeds the new control for the site which is to be gazetted imminently. The effect of the non-compliant FSR is evident in the inability of the development to meet deep soil and setback requirements.

 

The proposal is not supported in its current form. 

 

Community Development Officer

 

The community development officer does not support the proposal with the following reasons:

 

1).        Part F of Lane Cove DCP requires adaptive units to be able to be adapted / modified with minimal cost.  The Access Report submitted with the development application has identified that the current design requires significant modification of the bathrooms.

 

2).        Positioning of the Letterboxes on Basement 2 does not meet AS 4299.

 

 

 

 

Building Surveyor

 

The senior building surveyor has assessed the proposal against the deemed to satisfy provisions of the Building Code of Australia (BCA) and the Premises Standards -2010 and advised the BCA statement that accompanied the application stating that where BCA non compliances have been identified, the proponent will explore alternate solutions under the performance criteria of the BCA.  However, the shared zones for the accessible car parking on both levels of basement car park do not comply with Clause 2.2 of Australian Standard As 2890.6-2009 which requires a minimum of 2400mm width for a share zone.  5 out of 13 proposed accessible car spaces do not meet the BCA requirements.

 

Officer’s Comment

 

The non-compliance issues relating to the proposed accessible car spaces need to be addressed at the DA stage, given they might require more space within the basement for their share zones. 

 

Manager Urban Design and Assets

 

Council’s development engineer does not support the proposal and has provided the following advice:

 

The site has an RMS easement for tunnels and appurtenant structures covering the whole site below the horizontal plane at RL 88.9m AHD.  A RMS easement for ground anchors exists below a plane at RL90m.

 

As a result of the above mentioned, easements the information provided with this application is inconclusive whether this proposal is achievable from a structural perspective.

 

In order for Council to be able to support this proposal, a detailed analysis of the proposed development needs to be prepared and approved by the RMS to demonstrate that there will be no adverse effects on their infrastructure.

 

The proposed stormwater concept plan needs to provide more detailed information in accordance with Part O Council DCP – Stormwater Management. The design needs to include the following.

-           A rainwater tank to meet the Basix requirement

-           The pump out system for the basement carpark

-           Control of ground water around the site

 

The applicant submitted additional information to address the engineering concerns on 29 October 2013.

 

Council engineer further advised the additional information has addressed the proposed stormwater concept plan requirements.  However, application is unable to be supported until a response from RMS is provided to Council supporting the proposal. 

 

Landscape Architect

 

Council’s landscape architect does not support the proposal and has provided the following advice:

 

The application states that the deep soil provision is 7% of the site and that the proposal provides good quality on structure soil profiles to support the planting schedule illustrated in the landscape plans.

 

I have examined the proposed On-structure/ podium planting provision. These separate components of the landscape proposal stated that they would provide adequate soil volume as per Council on structure design expectations.  However there is insufficient cross-sectional detail on the proposed landscape plans showing these statements will be achieved in the end outcome.

 

The proposed on-structure planting opportunities do not provide a satisfactory replacement for the lack of “true deep soil” at grade, on this site.

 

Regardless of the existing use and appearance of the subject site, the deep soil requirement of 25% is a minimum requirement.  The floor plan for underground car parking eliminates the ability to provide ample deep soil currently.

 

Communal open space has been considered to an acceptable level in this proposal with the site constraints stated.  Plant selection is generally in keeping with our landscape policy.

 

This is a prominent site and should have a landscape presence that can accommodate a better allocation of deep soil for some large canopy trees to grow in true growing conditions.

 

Tree Assessment Officer

 

Council’s senior tree assessment officer has provided the following advice:-

 

The proposed Development consists of the construction of a residential Apartment building with basement parking and mostly on structure landscaping.

 

The site currently contains eight (8) trees consisting of locally native Eucalyptus trees and Angophora costata.  All trees on the site have been planted and range from six metres to eighteen metres tall with the majority of the trees under ten metres in height.

 

The Plans indicate all eight trees will be removed.  Of the eight trees only one large Ironbark is worthy retention because of its large size.  However, this tree is standing in an untenable location within two metres of the existing building and any redevelopment of the site will require its removal.

 

Consequently no objections are raised to the removal of the Ironbark or the other trees on the site given their modest size and low amenity value.

 

It is noted that the basement footprint consumes nearly the entire site.  This fact leaves little opportunity to plant large scale trees that would be in scale with the proposed Apartment block.

 

Traffic Manager

 

Council traffic engineer has assessed the proposal and has provided the following advice:-

 

Additional information has been requested as it is anticipated that a proportion of the development traffic would use the Pacific Highway / Osborne Road intersection to travel southbound on Pacific Highway.  Therefore, SIDRA analysis of the Pacific Highway / Osborne Road signalised intersection should be undertaken to assess the impact of development traffic (particularly right turners out of Osborne Rd heading east on Pacific Hwy).  Trip generation rates for ‘medium density residential flat building’ should be used, (as per the RTA Guide to Traffic Generating Developments, 2002) in order to consider a worst-case scenario.

 

Each adaptable unit requires a disabled parking space compliant with AS 2890.6.  Accessible parking spaces (as per AS 4299) are not acceptable. The 3 accessible parking spaces provided on Basement 2 and the 2 accessible parking spaces provided on Basement 1 are to be replaced by disabled parking spaces (AS2890.6).

 

In relation to the noncompliance with the AS 2890.6, the applicant has advised Council that further design review and certification would be undertaken following DA approval, as part of the necessary Construction Certificate design development process.

 

Council Traffic Engineer has stated that any non compliance with relevant standards relating to car park design must be addressed or justified at DA stage to Council staff's satisfaction.  This is not a matter for a private certifier to address at a later stage.

 

Officer’s Comment

 

The concerns raised by the traffic engineers are supported and the non-compliance issues relating to the proposed accessible car spaces need to be addressed at the DA stage, given they might require more space within the basement for their share zones and there are limited space within the basement. 

 

Waste Service

 

The waste contract coordinator has endorsed the proposal as the proposed design meets the requirements of Part Q of the DCP relating to ongoing waste management.  Draft conditions have been recommended in the event of approval of the application.

 

NSW Roads and Maritime Services

 

The development proposal was referred to RMS for comment under State Environmental Policy (Infrastructure) 2007.

 

The RMS comments should be included in the conditions of consent if IHAP approve the application. 

 

It is noted that RMS has not granted concurrence to the proposed development relating to the stratum easements. 

 

Refer to the Attachments for RMS comment as shown attached as AT- 3.

 

Lane Cove LOCAL Environmental Plan 2009 (Section 79c(1)(a))

 

The LEP aims to make local environmental planning provisions for land in Lane Cove in accordance with the relevant standard environmental planning instrument under section 33A of the Environmental Planning and Assessment Act 1979.

 

Clause 4.3 – Height of buildings

 

The building height standard for the site is 12m in accordance with the current LEP.  The maximum proposed building height is 23.6m.  The proposal does not meet the standard. 

 

Clause 4.4 – Floor space ratio

 

The FSR standard for the site is 4.1:1 in accordance with the current LEP and the proposal meets the standard.

 

Clause 4.6 – Exceptions to development standards

 

The clause outlines the provisions of exceptions to development standards of the LEP.  The applicant has lodged a written request for the exception to the building height standard of the current LEP in the Statement of Environmental Effects (SEE) submitted with the development application.

The SEE states that the draft LEP amendments to change the maximum  building height standard from 12m to 25m has been significantly progressed, it is understood that it is with Parliamentary Council and its gazettal was considered by Council to be imminent.  In addition to this, Council has advised that determining weight would be given to the draft controls which reflect Council’s current policy in relation to maximum height on the site. 

 

The SEE also stated that it is unreasonable and unnecessary to strictly apply the current control, given the amendments are imminent. 

 

Officer’s Comment

 

The public notification of the LEP amendments for the increasing the building height from 12m to 25m the sites including 388 to 400 Pacific Highway, 2-4 Longueville Road and 3-7 Gatacre Avenue was completed and the draft LEP is imminent and close to gazettal. 

 

The proposal would meet the building height standard of the draft LEP.  Compliance with the building height of the draft LEP would consistent with the building character of future developments in its adjoining sites to the south east. 

 

It is considered there are sufficient planning grounds to support the exception of the building height standard of the currently LEP and the exception of this standard would achieve a better outcome. 

 

Draft Lane Cove Local Environmental Plan 2009

 

The amended LEP would increase the building height standard for the site from 12m to 25m.  It would also reduce the FSR from 4.1:1 to 2.0:1.

 

The proposal would meet the building height, however fails to comply with the FSR of the draft LEP.

 

A written request for the exception to the FSR standard of the draft LEP was also included in the SEE.

 

The SEE stated the following reasons for the exception of the FSR standard of the draft LEP:

 

 

 

 

 

 

Officer’s Comment

 

Given the incompatibility between the FSR and building height standards of currently LEP and the draft LEP being imminent, weight has been given to the standards of the draft LEP during the assessment.  The proposal with FSR of 2.4:1 exceeds the maximum GFA for the site by approximately 798m2 which is more than the GFA of any one level of the proposed building.  The proposal also fails to meet the landscaping and setback requirements of the DCP.

 

The excessive GFA reflects that the building encroaches within the setback areas and requires a larger footprint of the basement for the accommodation of the required car spaces. 

 

The building footprint encroaching within the side setback areas would result in multiple insufficient separations between the proposed building and the adjoining sites, which would create privacy impacts to the adjoining property.

 

The large footprint of the basement occupies the almost the entire site with no space for tree planting along the east, west and north boundaries of the site. 

 

The proposed design would result in an over development on the site and create adverse impacts to the amenity of the adjoining sites and streetscape and restrict reasonable development on the adjoining sites. 

 

The request for the exception to the FSR standard of the draft LEP is not supported as it does not meet the objectives of Clause 4.6 and would not achieve a better planning outcome.

 

The proposal fails to meet the aims of the LEP in relation to residential development as the proposed design does not have a sympathetic and harmonious relationship with adjoining development.

 

Other Planning Instruments

 

Lane Cove Development Control Plan (DCP)

 

The DCP provides objectives and provisions for developments within in the Lane Cove Local Government Area.  The provisions of the DCP have assisted achieving high quality development that is responsive to the existing and desired future character of the area, best practice urban design and quality community outcomes for all neighbourhoods and centres within Lane Cove LGA.

 

Part C.3 - Residential Flat Buildings outlines the objectives and provisions for residential flat building developments and the compliances with the provisions of the DCP have been consistently required since the DCP was adopted in February 2010.

 

The proposed development fails to meet the objectives of the DCP and would not achieve a reasonable level of amenity for the neighbouring properties and the surrounding area. 

 

State Environmental Planning Policy 65 – Design Quality of Residential Flat Development (SEPP 65)

 

Part 2 of SEPP 65 sets out ten design quality principles as a guide to assess a residential flat development.  The “Residential Flat Design Code” (the Code) is referred to as an accepted guide as to how the principles are to be achieved.

 

Council’s consulting architect has advised that the proposed design does not comply with 5 out of 10 design principles relating to context, scale, built form, landscaping and amenity.

 

Refer to Attachment 2 - SEPP 65 assessment advice as shown attached as AT-4.

 

 

 

Section 94 Contribution Plan

 

Lane Cove Section 94 Contribution Plan applies to the proposal as it would increase of population in the area as a consequence of the development.  The Section 94 contribution is calculated in the following manner:

 

The development as proposed requires the following Section 94 Contribution.

 

No. of bedrooms

Average occupation rate

Population

25 x 1 bedroom

1.2

30 (1.2x25)

26 x 2 bedroom

1.9

49.4 (26 x 1.9)

7 x 3 bedroom

2.4

16.8 (7 x2.4)

Total proposed population

 

96.2

 

The Section 94 contribution applicable for 96.2 persons at the current rate of $9391.00/person (2013-2014) is $903,414.20 (or $15,576.11 per dwelling).  The required Section 94 contribution is less than $20,000 per dwelling and it would not exceed the cap of the Reforms of the Local Development Contributions.

 

A credit of the S94 to the existing commercial building for traffic management and streetscape improvement at a rate of $94.87/m2 has taken into consideration.  The GFA of the existing commercial building is 530.70m2.  The credit of the existing building is calculated as the follows:

 

$94.87/m2 x 530.7m2 = $50,347.51

 

If the development consent is granted, the required S94 contribution is $853, 066.69 ($903,414.20-$50,347.51) in accordance with the current (2013-2014) rates of S94 contribution. 

 

Variations to Council’s Codes/PolicIes (seCTIONS 79c(1)(a), (1)(b), and (1)(c))

 

The preceding policy assessment table identifies those controls that the proposal does not comply with. Each of the departures is discussed below.

 

As outlined in the DCP compliance table, the proposal does not meet various provisions of Part C.3 of the DCP.

 

Clause 3.3       Building depth

 

The objectives of the clause are:-

 

 

The provision of the clause states a maximum residential flat building depth is to be 18m.

 

The site is within R4- High Density Residential zone and a properly designed residential flat building development would meet the desire future context. 

 

The proposed building depth with a maximum depth of 24m does not meet the provision and too many dwellings have southern aspect (14 out of 58).  However, the proposal meets the solar access and natural ventilation requirements of the DCP. 

 

Clause 3.5       Setbacks

 

The objectives of the clause are:-

 

 

 

 

 

The subject site adjoins properties in R4 zone at its eastern and western boundaries and adjoins R2 zone at Mafeking Avenue.

 

The majority of the building setback to the eastern boundary adjoining 398 Pacific Highway is 6m from Ground level to Level 6 with a small section of the building with 4.4m to the boundary. 

 

The proposed setbacks to the western boundary adjoining 6-8 Longueville Road is 6m from Ground level to Level 3 which meets the DCP requirements.

 

The minimum proposed setback from Level 4 to Level 6 is 7.5m, levels 5 and 6 fail to meet the DCP requirement of 9.0m.

 

The applicant states that the proposed building has a highly articulated alignment and the variations to the side setback provisions of the DCP should be supported.

 

It is noted that the existing residential flat building on 6-8 Longueville Road has a minimum setback of 4.5m to its eastern boundary adjoining the subject site.  Sufficient separation between the proposed development and the existing residential flat building on the adjoining site would not be achieved by the proposed design.  The DCP has set minimum setback provisions for the residential flat building developments in R4 zones to ensure sufficient building separation is achieved. 

 

It is not unreasonable to require residential flat buildings, even with good articulation, to meet the minimum side setback requirements of the DCP.  Supporting a variation to the minimum setback provisions of the DCP in this circumstance is likely to create an unreasonable constraint on future development of the adjoining sites and also would restrict building design on the adjoining sites. 

 

The site adjoins dwelling houses in R2 – Low Density Residential at Mafeking Avenue.  The minimum setback of 8m is proposed.  Given the site has a small section of its boundary facing Mafeking Avenue and it is separated with the nearby dwelling houses by Mafeking Avenue, the variation to the side setback requirement is considered minor and is considered acceptable. 

 

Clause 3.8       Excavation

 

The objectives of the clause states:-

 

 

The provisions of the DCP requires excavation for major development is to be contained as closed as practicable to the footprint of the development and the extent of excavation proposed for underground uses should not compromise the provision of deep soil area or landscaped areas for residential flat buildings.

 

Almost the entire site would be excavated for the construction of the basement car park for the accommodation of the required car spaces for the proposed 58 dwellings.  The deep soil area is less than 4% of the site which is well below the minimum requirement of 25% of the DCP.

 

The application states that the stratum easements of the site restrict excavation of the site to no more than two levels and result in a large footprint of basement. 

 

It is acknowledged that the easement of the site restricts the depth of the excavation of the site for the construction of the basement.  However, the excessive GFA proposed for the site requires additional car spaces in the basement for the compliance with the DCP car parking requirements.  If the proposal meets the FSR standard of the draft LEP, the car parking provisions of the development would be significantly reduced and the footprint of the basement would be reduced.  The deep soil area of the proposed development would also be improved. 

 

Clause 3.12     Number of car parking, motorcycle and bicycle spaces

 

The proposed development requires a minimum of 93 car parking spaces.  92 car spaces and a car wash bay are proposed.  Given the proposed car wash bay shall not be allocated for any dwellings in the development and it may not be available for visitors at all time, the proposed car wash bay is not included in the number of car spaces and the proposal is one car space short of the minimum car spaces requirement. 

 

Clause 3.18     Communal open space

 

The DCP requires a minimum 25% of the site area as communal open space.  The proposed communal open space is approximately 23% and is proposed on podiums above the basement car park. 

 

Clause 3.19     Landscaped area

 

The DCP requires a minimum 40% of the site to be planted, comprising 25% landscaped area and a further minimum 15% planting on structures or landscaped area.  The proposed landscaped area exclusive the OSD is less than 4%, which is well below the minimum DCP requirement.

 

The applicant states that the existing site conditions could not provide any significant areas of deep soil, with the site largely built and the proposal would improve the landscape amenity of the site.  The applicant notes that the proposed deep soil area on the site is limited and confirms that the deep soil is 7% of the overall site.  The applicant stated the podium areas have been landscaped with planters for planting.  The RMS surface stratum and rock anchor easements constrains the depth of the basement limited to two levels. 

 

The applicant’s landscape statement is not supported as the basement has nil setbacks to its western and eastern site boundaries and is 1.1m from its northern boundary facing Longueville Road.  The OSD is designed for the storage of rain water collected from the site and is unable to allow tree planting.  The proposal has insufficient space along the boundaries for large trees to grow.  This leaves little opportunity for large trees to be planted which would complement the scale of the proposed 7 storey building. 

 

The landscaping of the existing commercial site is unsatisfactory. The inadequate landscaping of the existing site should not be a justification for variation to the current DCP landscaping requirements.  The additional car spaces for the GFA exceeding the maximum permitted GFA of the draft LEP contributes to additional footprint of the proposed basement. 

 

The variation to the landscaping requirement of the DCP is significant and would set an undesirable precedent for developments in Lane Cove LGA and is not supported. 

 

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

 

The proposal was notified in accordance with Council notification policy between 24 September 2013 and 8 October 2013.  23 submissions were received in response to the notification of the development application.  The issues raised in the submission can be summarised as follows.

 

 

Officer’s Comment

 

The proposed design does not comply with the FSR standard of the draft LEP.

 

 

Officer’s Comment

 

The shadow diagrams submitted with the development application indicate that the proposed building would not cast any shadow on the dwelling houses towards the southern side of Mafeking Avenue from 12 noon onwards in midwinter.  However, the proposed building would cast a shadow on the adjoining site at 398 Pacific Highway from 9am to 3pm.

 

 

Officer’s Comment

 

It is acknowledged that there could be adverse privacy impacts to the adjoining sites given that the proposed building does not meet the side setback requirements of the DCP and has insufficient separation to an adjoining residential flat building at 6-8 Longueville Road. 

 

 

Officer’s Comment

 

The excessive GFA has contributed to additional bulk to the proposed development.

 

 

Officer’s Comment

 

The proposed building would not meet the side setback requirements of DCP.

 

 

Officer’s Comment

 

It is acknowledged that the proposal does not meet the landscaping requirements of the DCP.

 

 

Officer’s Comment

 

The proposal would remove all existing trees for the construction of the proposed basement which would occupy the entire site.  There would be no opportunity for large tree planting along Longueville Road and Mafeking Avenue boundaries. 

 

 

Officer’s Comment

 

The maximum proposed building depth is 24m and exceeds the maximum building depth requirement of the DCP.

 

 

Officer’s Comment

 

The proposal does not meet the minimum parking requirements of the DCP and the insufficient parking on site would create additional street parking demands.  

 

 

Officer’s Comment

 

The proposed basement has nil setbacks to two side boundaries of the site and does not meet the DCP requirements.  The concerns are reasonable and conditions addressing the issues raised should be included in the conditions of consent if IHAP were to support the application. 

 

 

Officer’s Comment

 

The applicant indicates that the noncompliance with the side setback and landscaping requirements of the DCP are a result of the site constraints which include RMS easements.  However, the applicant is silent on the additional parking requirement generated by the FSR in excess of the draft LEP standard. 

 

The above concerns raised in the submissions are valid.  The submissions support Council’s planning controls and indicate the proposed development fails to meet varies provisions of the LEP, the draft LEP and the DCP.  Supporting the variations would not be in public interest. 

 

CONCLUSION

 

The matters in relation to Section 79C considerations of Environmental Planning and Assessment Act 1979 have been assessed. 

 

The proposed development does not meet the aims and objectives of Lane Cove LEP 2009 and the proposed design would result in an over development on the site and create unreasonable adverse impacts to the adjoining properties and the streetscape. 

 

The exception to the building height of the current LEP is supported as the proposed building height would be compatible with the future building character of the precinct.

 

The exception to the FSR standard of the draft LEP is not supported as it would not achieve a better planning outcome. 

 

All submissions have been taken into consideration during the development assessment and the submissions supported Council development controls and outlined the adverse impacts would be created by the non-compliances.

 

The development 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 refuses development consent to Development Application DA 13/143 for the Construction of a residential flat building comprising 58 dwellings with basement for 93 cars on Lot 10, 11 and 12 of DP 1056023 and known as 9 Mafeking Avenue, Lane Cove for the following reasons:-

 

1.         The proposal fails to meet the aims of Lane Cove Local Environmental Plan 2009.

 

Particulars:-

 

a.   The proposed building would not be compatible with the environmental character of the locality.

 

b.   The proposal would not have a sympathetic and harmonious relationship with the adjoining developments.

 

c.   It fails to meet the requirements of accessible dwellings.

 

2.         The proposal exceeds the FSR standard of the draft LEP.

 

Particulars:-

 

a.   The proposed development has an FSR of 2.4:1 which exceeds the maximum permitted FSR of 2.0:1 in accordance with the draft Lane Cove Local Environmental Plan.

 

b.   The draft LEP is imminent and close to gazettal and the standards of the draft LEP should be complied with.

 

c.   The proposal exceeds the maximum permitted GFA of the draft LEP by approximately 798m2, which would unreasonably increase the bulk and scale of the building structure and would be an over development of the site.

 

d.   The additional dwellings from the excessive GFA require additional on site car parking spaces and have resulted in a larger basement car park footprint, reducing deep soil landscaping opportunities. 

 

e.         The proposed building is excessive in building bulk and scale. 

 

3.         The proposal fails to meet the objectives of Lane Cove Development Control Plan.

 

Particulars:-

 

a.   It does not meet the side setback requirements and would create poor amenity for future occupants and the residents of the adjoining properties.

 

b.   The proposal provides insufficient deep soil areas for large trees on the site and would not create a positive contribution to the streetscape.

 

c.   The proposal fails to provide a sufficient number and type of car spaces for the proposed dwellings and would create adverse impact upon on street parking in nearby residential streets. 

 

d.   5 of the disabled car spaces do not meet the AS2890.6.

 

e.   It fails to meet the accessibility requirements of the DCP relating to the location of letter box and the design of adaptable dwellings. 

 

4.         The proposal design fails to meet 5 out of 10 design principles of the Residential Flat Building Code under State Environmental Planning Policy 65 – Design Quality of Residential Flat Development (SEPP 65).

 

Particulars:-

 

a.   The design fails to meet the principle of context as it has no respect for the adjoining properties to the south east and west.

 

b.   The design fails to meet the principle of scale as the proposed building would impact on the privacy and solar access potential of the site to the south east and the privacy of the property to the west. 

 

c.   The design fails to meet the built form principle as the building is too wide.

 

d.   The design fails to meet the landscaping principle as the car parking footprint occupies nearly the entire site and there is insufficient deep soil for large trees to grow along Longueville Road.

 

e.   The design fails to meet the principle of amenity as the proposed building would impact on the privacy and solar access of the adjoining sites. 

 

5.         There is insufficient information in the development application for a proper development assessment:

 

Particulars:-

 

a.   The traffic management report has not included analysis of the Pacific Highway / Osborne Road signalised intersection assessing the impact of development traffic (particularly right turners out of Osborne Rd heading east on Pacific Hwy). 

 

b.   A detailed analysis of the proposed development is required to be prepared and approved by the Roads and Maritime Services to demonstrate that there will be no adverse effects on their infrastructure (Lane Cove Tunnel). 

 

6.         The proposed development in its current form is not in public interest. 

 

a.   The proposed development would create adverse impact on the adjoining properties and would not contribute positively to streetscape.

 

b.   The valid concerns raised by the submissions.

 

*          Contrary to the objectives of the draft LEP;

*          Overshadowing impacts;

*          Overlooking impacts;

*          Excessive building bulk and scale;

*          Insufficient side setbacks;

*          Insufficient landscaping;

*          Increasing street parking demand; and

*          Non-compliances with the requirements of DCP.

 

c.   Supporting of the exception of the FSR of the draft LEP and significant variations to the landscaping and setback requirements of the DCP would undermine the DCP and set unacceptable precedents to other developments in this precinct and Lane Cove in general.

 

 

 


 

 

 

 

Michael Mason

Executive Manager

Environmental Services Division

 


 

ATTACHMENTS:

AT‑1 View

Site Location Plan

1 Page

 

AT‑2 View

Neighbour Notification Plans

2 Pages

 

AT‑3 View

Letter from NSW Transport Roads & Maritime Services 4 October 2013

3 Pages

 

AT‑4 View

SEPP 65 Report from Tim Williams Architects 21 October 2013

8 Pages

 

 


ATTACHMENT 2

Applicant's submission dated 2 December 2013

 

















ATTACHMENT 3

Letter from NSW Government Planning & Infrastructure dated 20 December 2013

 


ATTACHMENT 4

Plan of 390-398 Pacific Highway

 


ATTACHMENT 5

Letter from Winim requesting deferral to submit amended plans