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Agenda

Independent Hearing and Assessment Panel Meeting

5 August 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 5 August 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 5 August 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 - 1 JULY 2014

 

 

Independent Hearing and Assessment Panel Reports

 

2.       388 Pacific Highway, Lane Cove

 

  

 

 

 

 

 


Independent Hearing and Assessment Panel Meeting 5 August 2014

388 Pacific Highway, Lane Cove

 

 

Subject:          388 Pacific Highway, Lane Cove    

Record No:    DA13/174-01 - 37938/14

Division:         Environmental Services Division

Author(s):      May Li 

 

 

Property:                                 388 Pacific Highway, Lane Cove

 

DA No:                                    DA 13/174 (Section 82A Review)

 

Date Lodged:                          13 June 2014

 

Cost of Work:                          $300,000.00

 

Owner:                                    C Ahadizadeh Pty Ltd

 

Applicant:                                C Ahadizadeh

 

 

DESCRIPTION OF PROPOSAL TO APPEAR ON DETERMINATION

Alterations to an existing two storey commercial building and change of use to a mixed use development comprising a boarding house with rooms and a retail space

ZONE

R4- High Density Residential

IS THE PROPOSAL PERMISSIBLE WITHIN THE ZONE?

No.  Mixed use development is not permissible within R4 zone. (Note: Mixed use is permissible only under B4 zone). The applicant claims that the site enjoys existing use rights for a commercial use on the site and states that the proposed development is permissible in accordance with the provisions of the Environmental Planning and Assessment Act 1979.

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 3 & 6

STOP THE CLOCK USED

Yes – 2 days

NOTIFICATION

The S82A application was notified to all residents and associations included in the notification of the original development proposal.

Neighbours:

9 Mafeking Ave, 398, 396, 390-392, 382, 378 Pacific Highway, 5, 7, 3, 1,2 Gatacre Avenue and 5 Allison Ave

Ward Councillors:       Mayor and Ward Councilors

Progress Association: Osborne Park Residents Association

Other Interest Groups: Willoughby Council, Roads & Maritime Services NSW

 


REASON FOR REFERRAL

 

The original development application DA 13/174 was refused by Council under delegated authority and the Section 82A Review application is referred to Lane Cove Independent Hearing and Assessment Panel (IHAP) for a determination in accordance with Section 82A(6) (a) of the Environmental Planning and Assessment Act 1979. 

 

EXECUTIVE SUMMARY

 

Development application DA 13/174 for alterations to the existing building and a change of use of a portion of the building to be a boarding house and a portion of the ground level to be a retail space was refused by Council under delegated authority on 5 March 2014 with the following reasons:-

 

 

1.   The proposal does not allow for any retail/commercial car parking provision (6 required) on the site and with the with the limited and restricted on street car parking being available, it will have a direct impact on the amenity of the locality;

 

2.   The proposal fails to meet with objectives for onsite car parking for commercial development as required in Part D Clause 1.3 of the Lane Cove Development Control Plan 2010;

 

3.   The proposal does not allow for any commercial/retail loading and off loading facilities on the site and therefore it will impact on the amenity of the locality and as a consequence restrict the access to boarding house nominated car parking, motor bike and bicycle spaces on the site;

 

4.   The proposal fails to meet with the provisions of Part D Clause 1.3 of the Lane Cove Development Control Plan 2010 particularly sub clauses b), j), m) and p);

 

5.   The objectives for the R4 High Density Residential Zone as indicated in the Lane Cove Local Environmental Plan 2009 Part 2, is for high density residential land use activities with associated support facilities. It is considered that the continued use of part of the site for commercial/retail space does not complement the proposed boarding house and future residential land use and desired character for the locality; and

 

6.   A Construction Traffic Management Plan detailing construction vehicle routes, number of trucks, hours of operation, access arrangements and traffic control has not been provided with the application to enable the assessment of the construction program on the adjoining Pacific Highway and neighbouring road way system.

 

Site Location Plan and Neighbour Notification Plan attached (AT-1 and AT-2).  Copy of original assessment report attached (AT-3).

 

The applicant has amended the proposal and lodged an application for the review of determination in accordance with Section 82A (1) of the Environmental Planning and Assessment Act 1979.

 

The amended proposal has been reviewed in accordance with the provisions of Section 82A (4) of the EP&A Act 1979.  The proposed development would be a mixed use development which is not permissible within R4- High Density Residential zone.  The proposed development is not permissible in accordance with Clause 41(1) (d) of the Environmental Planning and Assessment Regulation 2000.

 

The proposed retail use would not be a compatible use to a boarding house on the ground level and the retail activities would create adverse impacts to the amenity of the accessible room and the common room of the boarding house. 

 

It is recommended that the application be refused and the original determination confirmed.

 

AMENDED PROPOSAL

 

The proposal involves alterations to an existing two storey commercial building and change to a mixed use development comprising a boarding house with 10 rooms and a retail space with 135m2.

 

The ground floor of the proposed building comprises retail and boarding house components:-

 

·    A retail space with an area of 135m2;

·    An accessible toilet for the retail space;

·    A loading dock within the building for the retail space;

·    A plant room for the retail space;

·    An accessible boarding room with internal bathroom, kitchen and laundry;

·    A common room for all lodgers; and

·    Parking facility located in front of the shop for residents including 2 car spaces, 2 motor bicycle spaces and 10 bicycle spaces.

 

Level 1 comprising 9 boarding rooms:-

 

·    9 boarding rooms each with a bathroom, kitchen, and north aspect balcony;

·    A storage room; and

·    A common open space.

 

The statement of environmental effects submitted along with the application states that a common laundry has been proposed for tenants of the boarding house.  However, the common laundry is in the form of a washing machine and tub accessible from the common circulation which would conflict with the entry to room 2.

 

The proposal is a mixed use development comprising a boarding house and retail space.

 

Mixed use development is not permissible within R4- high Density Residential zone in accordance with Lane Cove Local Environmental Plan 2009.

 

PREVIOUS APPROVALS/HISTORY

 

The previous development history was included in the original assessment report.

 

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

 

The original proposed mixed development is not permitted within R4 – High Density Resident zone and it does not meet the zoning objectives of the LEP.

 

The proposed boarding house and retail space are incompatible uses with regard to the location, function and activities. 

 

Part of the existing building on the ground level would be used for retail and the boarding house.  The residents of the boarding house would need to share the front setback area of the site with the business activities relating to the retail space. The activities of the retail space such as pedestrian flow and deliveries would create land use conflicts and pose adverse impacts to the amenity of the accessible room and the common room of the boarding house.  There are limited privacy and acoustic measures proposed to protect the amenity of the boarding house on the ground level. 

 

The subject site is on Pacific Highway.  No landscaped buffer area is proposed to reduce noise and particulate dust impacts from the highway.

 

The subject site is not considered suitable for the proposed mixed use development. 

 

Other Planning Instruments

 

Environmental Planning and Assessment Act 1979 & Environmental Planning and Assessment Regulation 2000

 

In addition to the development history stated in the previous assessment report, the applicant claims that the site enjoys existing use rights and has submitted supporting documents including a statement, a statutory declaration, copies of business tax invoices and previous development consents. 

 

These documents support the claim that the site has been used for commercial purposes with development consents prior to the gazettal of the Lane Cove LEP 2009 in February 2010 and has been continually used for commercial purposes since the gazettal of the LEP 2009.  It is considered that submitted supporting documents may satisfy the definition of “existing use” in Section 106 of the Environmental Planning Assessment Act 1979.

 

The development application seeks consent for alteration to the existing commercial building and change of use to a mixed use development comprising a boarding house and a retail space. 

 

However, the proposed development for a change of use from a commercial use to a mixed use development is not permissible within R4 – High Density Residential zone in accordance with Lane Cove LEP 2009 and is not permissible in accordance with Clause 41 (d) of the Environmental Planning Assessment Regulation 2000.

41 Certain development allowed

(1) An existing use may, subject to this Division:

(a) be enlarged, expanded or intensified, or

(b) be altered or extended, or

(c) be rebuilt, or

(d) be changed to another use, but only if that other use is a use that may be carried out with or without development consent under the Act, or

(e) if it is a commercial use—be changed to another commercial use (including a commercial use that would otherwise be prohibited under the Act), or

(f) if it is a light industrial use—be changed to another light industrial use or a commercial use (including a light industrial use or commercial use that would otherwise be prohibited under the Act).

 

Council cannot grant consent to the proposed mixed use development as it is not permissible in accordance with Clause 41 (d) of Regulation and the Lane Cove LEP 2009.

 

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

 

The policy assessment table in the original assessment report identifies the provisions that the proposal does not comply with. The proposed development does not meet the parking provisions of Lane Cove Development Control Plan. 

 

The amended proposal now provides for a loading dock within the building adjoining the retail space.  However, the non-compliance with the parking provision relating to the retail space still remains.  

 


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

 

The S82A review proposal was notified in accordance with Council’s notification policy between 25 June 2014 and 9 July 2014.  Three submissions were received in response to the notification of the S82A Review application. 

All three submissions acknowledge that there are minor amendments to the proposal, however majority of the concerns indicated in the original submissions remain unchanged

 

CONCLUSION

 

The matters in relation to Section 79C and Section 82A of the Environmental Planning and Assessment Act have been taken into consideration during the assessment.

 

The amended proposal submitted along with the S82A Review application has minor amendments to the original proposal.  The non-compliance with the parking provision of the Lane Cove Development Control Plan relating to the retail space remains. 

 

The proposed mixed use development is not permissible within the R4 zone of the site.

 

The change of use in not permissible in accordance with Clause 41 (d) of the  EP&A Regulation 2000. 

 

The site is not suitable for the proposed development as the activities of the proposed retail space would create adverse impacts to the amenity of the boarding rooms on the ground level.

 

The decision of the original assessment is recommended to be confirmed and the additional reason for refusal be added and reason 3 be deleted to those previously advised.  If supported the following recommendation is appropriate.

 

The application be refused and the original determination confirmed in the following manner:-

 

1.         The proposal does not allow for any retail/commercial car parking provision (6 required) on the site and with the with the limited and restricted on street car parking being available, it will have a direct impact on the amenity of the locality;

 

2.         The proposal fails to meet with objectives for onsite car parking for commercial development as required in Part D Clause 1.3 of the Lane Cove Development Control Plan 2010;

 

3.         Deleted;

 

4.         The proposal fails to meet with the provisions of Part D Clause 1.3 of the Lane Cove Development Control Plan 2010 particularly sub clauses b), j), m) and p);

 

5.         The objectives for the R4 High Density Residential Zone as indicated in the Lane Cove Local Environmental Plan 2009 Part 2, is for high density residential land use activities with associated support facilities. It is considered that the continued use of part of the site for commercial/retail space does not complement the proposed boarding house and future residential land use and desired character for the locality;

 

6.         A Construction Traffic Management Plan detailing construction vehicle routes, number of trucks, hours of operation, access arrangements and traffic control has not been provided with the application to enable the assessment of the construction program on the adjoining Pacific Highway and neighbouring road way system;

 

 

 

The following reasons be included:-

 

7.         The proposed development is a mixed use development which is not permissible within the R4 zone; and

 

8.         The proposed development is not permissible in accordance with Clause 41(1) (d) of the Environmental Planning and Assessment Regulation 2000 which states:-

 

            “An existing use may, subject to this Division:

 

                 (d)  be changed to another use, but only if that other use is a use that may be carried out with or without development consent under the Act.”

 

 

 

RECOMMENDATION

 

Pursuant to the provisions of Section 82A of the Environmental Planning and Assessment Act, 1979, the determination of development consent refused on 5 March 2014 for the alterations to an existing commercial building and change of use to a mixed use development comprising a boarding house with 10 rooms and a retail space on Lot I, DP 1065751 and known as 388 Pacific Highway, Lane Cove is submitted to IHAP for review and determination.

 

 

 

 

 

Michael Mason

Executive Manager

Environmental Services Division

 

 

ATTACHMENTS:

AT‑1 View

Site Location Plans

2 Pages

 

AT‑2 View

Neighbour Notification Plans

2 Pages

 

AT‑3 View

Original assessment report

12 Pages