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Agenda

Independent Hearing and Assessment Panel Meeting

7 March 2017, 5:00pm

 

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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 Rd, Lane Cove on Tuesday 7 March 2017 commencing at 5:00pm. The business to be transacted at the meeting is included in this business paper.

 

Craig - GMYours 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 7 March 2017

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 - 7 FEBRUARY 2017

 

Independent Hearing and Assessment Panel Reports

 

2.       59 Osborne Road, Lane Cove

 

3.       2 Zeta Road, Lane Cove

 

4.       203 Burns Bay Road, Lane Cove

 

5.       2 Wharf Road, Longueville  

 

 

 

 


 

Independent Hearing and Assessment Panel   7 March 2017

59 Osborne Road, Lane Cove

 

 

Subject:          59 Osborne Road, Lane Cove    

Record No:    DA16/150-01 - 62536/16

Division:         Environmental Services Division

Author(s):      Diep Hang 

 

 

 

Property:

59 Osborne Road, Lane Cove

DA No:

DA150/2016

Date Lodged:

2/9/2016

Cost of Work:

$650,000

Owner:

Jamyla Humphries

Applicant:        

Farzad Ebrahimzadeh

 

Description of the proposal to appear on determination

Demolition of existing structures, tree removal, and the construction of an attached dual occupancy

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

Yes

BCA Classification

Class 1a and 10a

Stop the Clock used

Yes

Notification

Neighbouring properties:

61,56B, 55, 57, 56A, and 63 Osborne Rd

6, 8, 10, 14 and 12 Campbell Ave

                                              

Ward Councillors – East Ward

                                              

Progress Association

Osborne Park Residents Association

 

REASON FOR REFERRAL

 

Development Application DA150/16 is referred to Lane Cove Independent Hearing and Assessment Panel (IHAP) for determination as the proposed development seeks a variation sought to the maximum floor space ratio (as prescribed within the Lane Cove Local Environmental Plan 2009), various non-compliances sought to the Lane Cove Development Control Plan, engineering and tree management issues, and unresolved submissions.

 

EXECUTIVE SUMMARY

 

The proposal involves the demolition of existing structures, tree removal and construction of an attached dual occupancy.

 

The proposed dual occupancy is permissible within the R2 Low Density Residential zone.

The development exceeds the maximum floor space ratio standard of the Lane Cove Local Environmental Plan 2009 (LEP). A written request for the exception to the development standard has not been lodged with Council for consideration in accordance with Clause 4.6(3) of the LEP.

 

The proposed design fails to meet a number of provisions outlined in the Lane Cove Development Control Plan relating to the building’s design, more specifically, streetscape presentation, cut and fill, wall and sub floor height, driveway width and design, and impacts on existing trees.

 

Three (3) submissions and one letter of support were received during the initial notification period of the proposal. Matters raised in the submissions related to traffic and parking concerns, loss of privacy and amenity, the proposal being out of character with the neighbourhood the removal of trees and the compatibility of the development for the site.

 

During the assessment process, the driveway and garage of the southern unit was amended. As such, the amended proposal was re-notified. During the re-notification period, four (4) submissions were received, one of which was from the Lane Cove Bushland and Conservation Society Inc. Concerns raised were with respect to the protection of existing trees, the inconsistent design of the development with the character of the street and immediate area, and loss of privacy and amenity.

 

Objections to the proposed development were raised by Council’s Development Engineer and Tree Assessment officers – Refer to the referral section of this Report.

 

On 21 February 2017, the applicant lodged a Class 1 Appeal with the Land and Environment Court against the deemed refusal of the development application (DA16/150).

 

The development application is recommended for refusal.  Site Location Plan and Neighbour Notification Plan attached (AT1 and AT2).

 

DA HISTORY – PREVIOUS APPLICATIONS

 

Council’s records do not indicate any relevant previous site/development history at the subject property.

 

DA HISTORY – CURRENT APPLICATION

 

2 September 2016                              DA lodged

 

5 September 2016 to                          DA notified

19 September 2016                           

 

29 September 2016                            Additional information requested to address matters raised by NSW Rural Fire Services

 

11 October 2016                                 Tree concerns forwarded to Applicant to address

 

2 November 2016                               Meeting held with Applicant to discuss matters raised by Council

 

22 December 2016                             Amended plans and additional information submitted

 

22 December 2016 to                                     Amended plans notified

19 January 2017

 

23 January 2017                                 The applicant provided response to privacy concerns raised in submissions received

 

21 February 2017       The applicant lodged a Class 1 Appeal with the Land and Environment Court against the deemed refusal of the development application (DA16/150)

 

SITE

Property

Lot B in DP323691

Area

849m²

Site location

The site is located on the western side of Osborne Road, between Second Avenue and Richardson Street

Existing improvements

The site is occupied by an existing two storey brick and timber dwelling with a detached garage. There are a number of trees located within the front setback of the property.

Shape

Rectangular                                  

Dimensions

Width     19.2m                                                 Depth    44.195m                      

Adjoining properties

East – Street and opposite Lane Cove Bushland Park                                        

West – Residential dwelling

North – Residential dwelling                  

South – Residential dwelling

 

BACKGROUND

 

On 19 May 2016, a pre-DA meeting was held with Council to discuss the following options for the site:

 

¾     Alterations and additions to the existing dwelling house; or

¾     Demolition of the existing dwelling house and construction of an attached dual occupancy.

 

Discussions strongly advised compliance with the LEP development standards for FSR and building height. It was also advised that compliance with applicable provisions of the DCP be demonstrated in the DA submission. Non-compliances with the maximum wall height, cut and fill, landscaped areas requirements and three storey scale of the development were noted. The mirror-reversed façade of the dual occupancy was also raised as a matter to be considered.

 

Preliminary advice provided also outlined the need for all proposed parking and driveway grades to demonstrate compliance with AS2890.1 for both dwellings and have minimal impact on existing trees on the site. 

 

PROPOSAL

 

The proposal is to demolish the existing dwelling and detached garage on the property and tree removal to accommodate the development.

 

The proposed attached dual occupancy development comprises of three (3) levels being garages at the lower ground floor, with residential floor areas located on the ground floor and first floor levels.

 

The proposal would be concrete and masonry construction with a common divisional wall between each occupancy through the centre of the building, with a low profile sheet metal roof.

 

On-site parking is provided for each dwelling by a single garage and double garage respectively. An entrance foyer adjoins the garages and interconnects to the ground floor level of each unit.

 

The floor plan for each unit is the generally mirror reversed (with the exception of the garages) and will include the following:

 

Lower ground floor

Single and double garages respectively, with storage area

New separate driveways to the individual garages along the north and south side of the site from the street frontage

Entrance foyer adjoining the internal stairway to the ground and first floor levels

 

Ground floor

Master bed room with ensuite

Bed rooms 2, 3 and 4 with ensuite

Bath room

Internal stairway to the lower ground and first floor levels

Balconies at the front accessed from the master bed rooms

 

First floor

Rumpus

Dining area

Kitchen

Lounge area

Pantry

Laundry

WC room

Balconies at the front accessed from the lounge

Patio at the rear accessed from the rumpus rooms and laundry

Elevated planter box garden areas along the north and south side of the building

 

The first floor level is set back from the ground floor external walls by 1.4 m to provide a stepped profile when viewed from the front and rear elevations.

 

Roof

The roof is shown to be a low profile construction covered with sheet metal with a centrally located flat sky light installation above the internal stairway for each unit.

 

Rainwater tanks are provided at the lower ground floor level behind the garage areas within a nominated service space.

 

The stormwater is proposed to be piped to the street as per the submitted engineering designs prepared by Australian Consultants & Engineering Ltd.

 

The proposal would require the removal of some existing trees and vegetation as indicated on the submitted landscape plan within and adjoining the building footprint and the new driveway on the south side of the site.

 

The landscape plan submitted with the application prepared by A Total Landscape Architects proposes new plantings adjoining the side and rear boundary with central plantings between both driveways.

 

Elevated planter boxes are also proposed on the first floor level, along both sides of the dual occupancy.

 

 


 

PROPOSAL DATA/POLICY COMPLIANCE

 

Local Environmental Plan 2009

 

Zoning:           R2 Low Density                                 Site Area:       849m²

 

Clause

Proposed

Control

Complies

Zoning

Dual occupancies are permissible with development consent in the R2 zone

R2 Low Density Residential

Yes

4.1 Minimum Lot Size

The property has a site area of 849m².

 

The proposal is for an attached dual occupancy.

The size of a lot for the purposes of a dual occupancy must not be less than 750m² for an attached dual occupancy

Yes

4.3 Height of Buildings

8.7m             

9.5m

Yes

4.4 Floor Space Ratio

0.5:1

GFA: 450m² (0.53:1)

No

4.6 Exception to development standards

The applicant’s calculations outline that the GFA is 424m² (0.5:1), and as such has not submitted a written request to seek a variation to the maximum permitted FSR.

 

Council officers’ calculations indicate the GFA to be 450m² which equates to a FSR of 0.53:1. This represents a 3% variation to the development standard.

Written request prepared in accordance with Clause 4.6(3) required for Council’s consideration to vary a development standard

No

 

Comprehensive DCP

 

 

Proposed

Control

Complies

Streetscape

The proposal is symmetrical and mirror-reversed in appearance when viewed from the street, with the exception being the single and double garages.

Attached dual occupancies should not have a symmetrical appearance when viewed from the street and are to be designed as one building structure, both physically and in appearance

No

Front setback (min)

16.27m

Consistent with area or 7.5m

Yes

Secondary street setback (corner lots)

N/A

2m

N/A

Side setback (min)

1.5m setback provided to the northern and southern boundaries for the ground, first and second floors

1200mm single storey

1500mm two storey

Yes

Rear setback (min)

6.445m

 

6m

 

Yes

Wall Height (max)

(max parapet of 600mm)

3m –7.8m

7m

No

Maximum Ridge height

8.7m

9.5m

Yes

Subfloor height (max)

1.8 m

1.5m

No

Number of storeys (max)

Three (3) storeys

The proposed garages/ ‘ground level’ are greater than 1m above the existing level and as such as considered to be a storey and not basement level. Refer to LEP definition of ‘basement’ below.

Max. 2 storeys

No

Note:

basement means the space of a building where the floor level of that space is predominantly below ground level (existing) and where the floor level of the storey immediately above is less than 1 metre above ground level (existing).

 

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

39%

35%

Yes

Foreshore Building Line (min)

The subject site is not located along the foreshore

 

N/A

Cut and Fill (max)

2.7m (garage)

1m

No

Solar Access

Living areas and the principal private open space areas of each dwelling within the proposed development will receive a min. 3 hours sunlight from Noon-3pm, mid-winter.

 

The proposal will result in an increased shadow impact on No. 61 Osborne Rd (adjoins site to the south).

3hrs to habitable rooms and recreational areas of subject site and adjoining properties between 9am and 3pm, on 21st June

No –

adjoining property

Privacy – Visual and acoustic

Appropriate measures and setbacks are provided to ensure adequate amenity is maintained between properties

To provide reasonable acoustic and visual privacy for neighbouring properties

Yes

Provide for view sharing

Neighbours views to bushland located on the eastern side of Osborne Road, opposite the site are not affected

Minimise the impact of new development on existing public and private views and vistas

Yes

Heritage Conservation

The subject site is not located within a heritage conservation area

 

N/A

Deck/Balcony depth (max)

Max. 3m (front balcony)

3m

Yes

Private open space

50m² each dwelling

24m² (min)

4m minimum depth

Yes

BASIX

BASIX Certificate Nos. 755737S-02 &755734S_02, both dated 1/09/2016

Required

 Yes

 

Car Parking

 

 

Proposed

Control

Complies

Off-street spaces (min)

Single and double garages proposed

1 car space for each dwelling

Yes

Driveway width

Two (2) driveways are proposed. Existing driveway to be retained and construction of new driveway

3m at the lot boundary

No

Driveway width (battle-axe lots) (min)

N/A

3m

N/A

 

Fences

 

 

Proposed

Control

Complies

Front fence height (max)

A front fence is not proposed as part of this application

Solid: 900mm

Lightweight:     1.2m

N/A

Setback from front boundary if > 1.2m

N/A

1m

N/A

 

Side and rear fences

1.8 m (side and rear)

1.8m

Yes

 

REFERRALS

 

Development Engineer

 

Council’s Development Engineer has reviewed the amended propo  sal, accompanying revised reports and documentation, and cannot support the proposed development based on the following departures sought to AS2890.1:

·         The proposed driveway grades reach 38%, which are considered excessive, and do not satisfy scrapping provisions outlined within AS2890.1.

·         The proposed egress of vehicles not in a forward direction for such a long and steep driveway is also not in the best interest of public safety.

·         The proposed grade line design is considered not safe and environmentally sustainable.

 

Tree Assessment Officer

 

Council’s Tree Assessment Officer has reviewed the amended proposal, accompanying revised reports and documentation, and cannot support the proposed development based on the following reasons:

      i.        The proposal seeks to remove Tree 4, an Eucalyptus piperita. This tree is of good quality and health and should be retained.

     ii.        The driveway construction has been amended to sit on piers above existing ground level. The problem with any type of driveway construction activity (including this current proposal) is the imminent soil manipulation, soil compaction and physical damage to tree roots from repetitive track machine movement within the abovementioned trees’ structural root zone and tree protection zone.

    iii.        Tree 2 is an Angophora costata and Tree 9 is an Eucalyptus resinifera. The proposed development activity within the structural root zones and tree protection zones is considered to impact on the health, condition and stability of trees numbered Tree 2, Tree 4 and Tree 9, which should be protected and retained.

   iv.        The new driveway is setback 1.5m from the existing Liquidambar street tree. Observation of the soil profile within the driveway footprint shows multiple tree roots above and below soil level. It is highly unlikely a driveway crossing can be accommodated in such close proximity to Council’s street tree without inflicting irreversible damage to the street tree’s structural roots and second order roots. Even if the driveway was built over the top of the tree’s roots, interaction between the trees root system and the new driveway is inevitable within a short space of time as the tree grows and expands.

    v.        The revised Arborist Report (dated 19/12/16) notes excavation occurring within a pool footprint - 11.8 Excavations, of the Arboricultural Method Statement (AMS). There is no pool or proposed pool at the subject site. Point 11.7 Demolition of the AMS states that machinery is able to work outside the tree protection zones which is not considered possible given the driveway construction. Additionally, the holding points referenced in Section 12 will not prevent damage to trees on the site, based on the current amended proposal.

   vi.        The proposed development cannot be supported in its current form due to the close proximity of development works to good quality mature trees, locally occurring native trees on the site, and the Liquidambar street tree.

 

NSW Rural Fire Service

 

The subject site is identified as bushfire prone land. In accordance with Section 79BA of the EP&A Act 1979, the proposal was referred to the NSW Rural Fire Service (RFS) for advice regarding bushfire protection. The NSW RFS have raised no objections to the proposal, and recommended conditions to be imposed should development consent be granted.

 

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

 

The proposal is permissible and complies with the development standards for building height. The proposal does not comply with the floor space ratio standard, and no written request has been submitted to vary the development standard in accordance with Clause 4.6(3) of the Lane Cove Local Environmental Plan 2009.

 

Other Planning Instruments

 

SEPP 55 Remediation of Land

 

The site is not identified in Council’s records as being contaminated. A site inspection reveals the site does not have an obvious history of a previous land use that may have caused contamination and there is no specific evidence that indicates the site is contaminated.

 

SEPP (Building Sustainability Index: BASIX) 2004

 

The requirements outlined in the BASIX certificates have been satisfied in the design of the proposal. A condition will be imposed to ensure such commitments are fulfilled during the construction of the development.

 

APPLICABLE REGULATIONS

 

The Environmental Planning and Assessment Regulation 2000 indicates that the standards for demolition and removal of materials should meet with AS 2601-2001 and therefore any consent will require the application of a relevant condition seeking compliance with the Standard.

 

Section 94 Contribution

 

The proposed development would result in additional population, as it proposes an additional dwelling on the site. In this regard, Section 94 Contribution is applicable to the development in accordance with Council’s Section 94 Contribution Plan, should development consent be granted.

 

There would be an additional dwelling with 4 bedrooms. The occupation rate of a 4 bedroom attached dual occupancy is 3 persons per dwelling. The current rate (2016-2017) of S94 contribution is $10,000 per person.

 

The S94 contribution is calculated as: $10,000 x 3 = $30,000.

 

The calculated amount of $30,000 per dwelling exceeds the cap introduced by Reforms to Local Development Contributions 2010 which states a cap limit of $20,000 per residential lot or per dwelling on local development contributions.

 

Therefore, the S94 contribution of the proposed development is $20,000 should development consent be granted.

 

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.

 

Proposed

Control

Comment

Council support

Floor Space Ratio

0.5:1

(LEP)

The proposed FSR is 0.53:1 which exceeds the FSR standard pursuant to LEP 2009.

 

The applicant has not requested for the exceptions to FSR standard.

 

Council cannot grant development consent to the proposed development as it would contravene the FSR development standard – Clause 4.4 of LEP 2009, unless the applicant provides written requests in accordance with Clause 4.6(3) of LEP 2009 that seeks to justify the contravention.

 

In addition, it should be noted that the objective of Clause 4.4 Floor Space Ratio is to ensure that the bulk and scale of development is compatible with the character of the locality. The variation to the FSR standard suggests that the proposed development is not harmonious with the traditional and emerging character of the immediate area.

No

Streetscape

Not to have a symmetrical appearance when viewed from the street

The proposal is symmetrical and mirror-reversed in appearance when viewed from the street, with the exception being the single and double garages. The façade of the proposal does not present as a single building structure which is in keeping with the requirements and objectives for streetscape, to ensure that new development is of a scale and appearance which is in keeping with the predominant and emerging street and neighbourhood character.

No

Wall height varies between 3m and 7.8m

7m

The front section at north and south elevation, to the first floor level has a height of 7m above the adjoining ground level.

 

The first floor level is stepped back at both the front and side elevations and there is a departure from the control of 0.8m at the south east elevation at the front section. The departure extends for a distance of 3m from the front wall on the first floor.

 

It is noted that the site has a fall from the rear to the street frontage. The departure is considered to contribute to increased overshadowing impact to the property to the south and a bulky appearance on the street.

No

Cut and fill with sub floor height

 

No. of storeys

2.7m

 

 

 

3 storeys

The garages are excavated partially below the ground floor level and the extent of the excavation at the greatest depth is 2.7m.

 

Also the sub floor height at the front of garages is approximately 1.8m.

 

The excavation required to accommodate the development has resulted in the proposal being three (3) storeys in height. This is due to the proposed garages/‘ground level’ being greater than 1m above the existing level, which is considered to be a storey and not basement level.

 

 

Refer to LEP definition of ‘basement’ below.

 

basement means the space of a building where the floor level of that space is predominantly below ground level (existing) and where the floor level of the storey immediately above is less than 1 metre above ground level (existing).

 

The departures sought suggests that the proposed development has not been designed to respond to the topography and constraints of the site.

No

Solar access to adjoining properties

 

Reasonable sunlight to the habitable rooms and recreational areas of the subject site and adjoining premises between 9am and 3pm on 21st June. In particulary a portion of windows of neighbouring dwellings receive at least 3hours of sun between 9am and 3pm on 21st June.

b) Council may accept reduction in solar access for the subject site and adjacent development if the topography and lot orientation is such that the 3 hour standard is considered unachievable.

c) Where adjacent dwellings and their open space already receive less than 2 hours of sunlight

The proposal reduces the solar provision to the adjoining property to the south – No. 61 Osborne Road.

 

There is an increase in shadow length to the northern elevation of the adjoining property to habitable rooms. However the open space will still retain a majority of solar access and sunlight.

 

The adjoining property owner at 61 Osborne Road has no objections to the proposal and in fact submits a letter of support.

 

It is considered that the solar provision to the adjoining property on the south side is reasonable and acceptable.

 

Yes

Driveway width

Min width 3m

 

The proposal indicates retention of existing driveway on the northern side to access proposed unit A basement car parking, and construction of a new driveway on the southern side to access proposed Unit B.

 

Therefore if approved as submitted the site will have two (2) crossing being a total width of 6m

 

Council’s Development Engineer has outlined that the proposed driveways do not comply with AS2890.1 and that the proposed grade line design is considered not safe and environmentally sustainable.

 

Council’s Tree Assessment officer has also outlined that the new driveway to the south will impact on the health of the existing Liquidambar street tree and existing property trees.

No

 

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

 

The proposal was notified in accordance with Council’s notification policy from 5 September 2016 to 19 September 2016. In response, three (3) submissions were received, and one letter of support.

 

Amended plans were notified from 22 December 2016 to 19 January 2017. In response, four (4) submissions were received.

 

Concerns raised in both notification periods are summarised below:

 

Concern

Comment

1.    Dual occupancy is out of character to the area

 

 

 

 

2.    Traffic and parking concerns and proposal will increase parking demand on Osborne Road

 

3.    Increased density in the area and would introduce a loss of amenity to the area

 

4.    The development seeks to modernize the street which is dated and need of a fresh modern look while retaining the current streetscape. The proposed development is in line with the type of building and quality as that of 1 Richardson Road.

 

5.    Generally happy with the proposal subject to the development as proposed, does not exceed the height as indicated on the plans.

 

6.    The Cupressus sempervirons is indicated to be removed on the landscape plan where as the Aborists report be retained.

 

7.    The principal orientation of the main living area at No. 57 Osborne Road is to the south east across the front of the subject site. The proposal will affect the privacy and will alter the existing amenity presently afforded to the objector’s property. There will be a loss of views and also outlook.

 

The following amendments are requested:

a)    Windows W04A, W05A and W06A to the first floor master bedroom be conditioned to comprise glass bricks (or a similar completely fixed and obscured glass.

b)    Window W10A to the second floor lounge be reduced in size to include a sill height of more than 1.6m.

c)    Windows W13A and W14A to the second floor kitchen and rumpus room respectively, be reduced in size to include a sill height of more than 1.6m.

d)    Privacy screens are added to the whole northern edge of the first and second floor terraces to a height of 1.8m.

e)    Existing trees/vegetation between the rear section of the proposed development and No. 57 Osborne Rd be retained where possible and included in the proposed mulched path.

 

8.    Tree Nos. 2 and 9 should be retained and protected during the construction period. There should not be damage or removal of any canopy of any trees on the site or the verge.

 

            Protection and minimal             impacts on existing             trees.

Dual occupancy developments are permitted in the R2 zone. However, the proposal has not been designed in accordance with Council’s streetscape controls as it has a symmetrical façade to the street and does not convey as one building structure.

 

The proposal provides 3 car parking spaces as required by Council’s DCP. Council’s Development Engineer has raised concerns with respect to the driveway for the proposal – Refer to referral section of report.

 

 

The housing density being a dual occupancy is permitted in the R2 zone.

 

 

 

This submission supports the proposal.

 

 

 

 

 

 

 

 

 

 

 

 

The height of the building is 8.7m, as indicated on the plans, and does not exceed the maximum building height (9.5m) pursuant to the LEP.

 

 

 

 

The landscape plan indicates that there will be new planting in the locality with Dwarf Philodendron (5 in number).

 

 

 

 

 

 

The front set back proposed with the application is well in excess of the standard of 7.5m, and the front section of the site will be landscaped with new plantings to assist in maintaining a reasonable visual amenity for the site and adjoining property at No. 57 Osborne Road.

 

The second floor section of the dual occupancy unit adjoining No. 57 Osborne Road is setback 2.9m from the common side boundary.

 

A planter box is also proposed external to the northern elevation, on the second floor, with a width of 1.4m, for the full length of the building. The plantings will limit some of the opportunity to directly impact on the privacy of the adjoining property.

 

The second floor windows along the northern elevation are fixed with obscured glazing to a height of 2.5m (measured from the FFL). All windows are only openable after a height of 2.5m.


It is considered that this is a more effective method of ensuring a reasonable level of privacy is maintained to the adjoining property at No. 57 Osborne Road.

 

a)    Windows W04A, W05A and W06A are fixed with obscured glass to a height of 1.8m (measured from the FFL).

b)    Window W10A has not been reduced in size. However, the lounge room window has been fixed with obscure glazing to a height of 2.5m (measured from the FFL). This is considered appropriate in mitigating direct overlooking to the adjoining property.

c)    Windows W13A (kitchen) and W14A (rumpus) have not been reduced in size. However, the lounge room window has been fixed with obscure glazing to a height of 2.5m (measured from the FFL). This is considered appropriate in mitigating direct overlooking to the adjoining property.

d)    A condition of consent can be imposed to provide fixed 1.8m high privacy screens for the entire length of the first and second floor balconies to ensure privacy is maintained between properties, should development consent be granted.

e)    Landscaping and vegetation within the rear section of the proposed development is to be generally maintained and retained as indicated on the landscape plan.

 

 

 

 

 

 

 

 

 

 

 

Council’s Tree Assessment officer has raised concerns with respect to the health of Tree Nos. 2 and 9 as a result of the development – Refer to comments in referral section of this report.

 

CONCLUSION

 

The matters under Section 79C of the Environmental Planning and Assessment Act 1979 have been considered.

 

The amended proposal does not meet a number of controls outlined within the DCP relating to building design, and has unresolved vehicular access and tree protection issues. The proposed driveway does not comply with AS2890.1 and will impact upon the health of existing property trees and the existing Liquidambar street tree, proposed to be retained. The removal of Tree No. 4 to accommodate the proposal is also not supported.

 

The proposed development also fails to meet the FSR standard of the LEP and a written request for the exception to the FSR standard has not been lodged. Council cannot grant development consent to the proposed development because it would contravene the development standard in Clause 4.4 of LEP 2009, unless the applicant provides written request in accordance with Clause 4.6(3) of LEP 2009 that seeks to justify contraventions.

 

 

RECOMMENDATION

That pursuant to Section 80(1)(b) of the Environmental Planning and Assessment Act 1979, as amended, the Independent Hearing and Assessment Panel (IHAP) refuse Development Application DA150/2016 for demolition of existing structures, tree removal, and the construction of an attached dual occupancy at 59 Osborne Road, Lane Cove for the following reasons:


            Aims of Lane Cove Local Environmental Plan 2009

 

1.    The proposed development does not meet the aims of Lane Cove Local Environmental Plan 2009.

 

 

Particulars:

 

(a)  The proposed development would not preserve and improve the existing character, amenity and environmental quality of the land and the expectations of the community.

(b)  The proposed development does not meet the aims which are outlined in Clause 1.2(c) of the LEP 2009as it would not provide a housing mix and density that would be compatible with the existing environmental character of the locality, and does not have a sympathetic and harmonious relationship with adjoining properties.

(c)  The proposed development does not meet the aims of Clause 1.2(f) of the LEP 2009 because it will impact upon the health of existing trees. The proposed building and driveway does not ensure compatibility with the natural environmental character of the site.

 

Floor Space Ratio

 

2.    The proposed development does comply with Clause 4.4 – Floor Space Ratio (FSR) of Lane Cove Local Environmental Plan 2009.

 

Particulars:

           

(a)  The maximum permitted FSR for a dual occupancy development on the site is 0.5:1 in accordance with Clause 4.4(2) of the Lane Cove LEP 2009.

 

(b)  The proposed floor space ratio exceeds the maximum floor space ratio (FSR) for a building on the land shown on the Floor Space Ratio Map of Lane Cove Local Environmental Plan (LEP) 2009.

 

(c)  The bulk and scale of the proposed development is not compatible with the character of the locality.

 

            Exceptions to development standards

 

3.    The applicant has not lodged a written request in accordance with Clause 4.6(3) of Lane Cove LEP 2009 for the exception to the FSR standard.       

 

Particulars:

 

(a)  Council cannot grant development consent to the proposed development because it would contravene the development standard in Clause 4.4 of LEP 2009 unless the applicant provides written request in accordance with Clause 4.6(3) of LEP 2009 that seeks to justify the contravention.

 

(b)  The proposed FSR is 0.53:1 which is greater than 0.5:1 stated in the development application.

 

(c)  The exception to the FSR development standard would not achieve any better outcomes in these particular circumstances.

 

(d)  There are insufficient environmental planning grounds to justify contravention the development standard.

 

           

 

 

Lane Cove Development Control Plan (DCP)

 

4.    The proposed development does not meet the building design provisions in Part C2 of Lane Cove Development Control Plan.

 

            Particulars:

 

(a)  The proposed dual occupancy does not meet objective 1 of Clause 1.2 Streetscape of the DCP 2010 and provision (c) in that the proposal presents a symmetrical appearance when viewed from the street and is not in keeping with the predominant and emerging street and neighbourhood character.

 

(b)  The proposed dual occupancy requires excavation that fails to meet requirements outlined in Clause 1.6 Cut and fill, subclause (a), (c), (d) and (f) of DCP 2010.

 

(c)  The proposed dual occupancy exceeds the wall and sub floor height requirements as indicated in Clause 1.7 Building Design, subclause (a), (b) and (e).

 

            Vehicular Access

 

5.   The design of the driveway fails to meet relevant standard and the provisions of the DCP.

 

            Particulars:

 

(a)  The widths of the driveways are excessive and would impact upon the health of existing property trees and the existing street tree.

 

(b)  The proposed driveway grades are considered excessive, and do not satisfy provisions outlined within AS2890.1. The proposed egress of vehicles not in a forward direction for such a long and steep driveway is not in the best interest of public safety, and not considered to be environmentally sustainable.

 

            Tree Management

 

6.    The proposed development will impact on the health and stability of mature quality property  trees, and the existing street tree.

 

            Particulars:

 

(a)  The proposal seeks to remove Tree No. 4, a Eucalyptus piperita. This tree is of good quality and health and should be retained.

(b)  Please note that Tree No. 4 is not indicated on plans lodged to be relied upon for the Class 1 Appeal proceedings with the Land and Environment Court.

 

(c)  The driveway construction proposed within the structural root zone and tree protection zones will impact on the health, condition and stability of existing trees which are to be protected and retained.

 

(d)  The proposed development cannot be supported in its current form due to the close proximity of development works to good quality mature trees, locally occurring native trees on the site, and the Liquidambar street tree.

 

 

 

Impact upon the natural environment

 

7.    The impact upon the natural environment is unacceptable.

 

Particulars:

 

(a)  Pursuant to Section 79C(1)(b) of the Environmental Planning and Assessment Act 1979, development consent should not be granted as the proposed development will result on adverse impacts upon existing mature trees.

 

Suitability of the site for the proposed development

 

8.    The site is not suitable for the proposed development.

 

            Particulars:

 

(a)  Pursuant to Section 79C(c) of the Environmental Planning and Assessment Act 1979, the site is not considered suitable for the proposed development having regard to the above matters.

 

Public Interest

 

9.    Pursuant to Section 79C(c) of the Environmental Planning and Assessment Act 1979, the approval of the proposed dual occupancy would not be in the public interest.

 

            Particulars:

 

Pursuant to Section 79C(1)(d) and (e) of the Environmental Planning and Assessment Act 1979, the development application should not be approved having regard to concerns raised in the submissions received by Council and the above matters.

 

 

 

 

 

Michael Mason

Executive Manager

Environmental Services Division

 

 

ATTACHMENTS:

AT‑1View

Site Location Plans

2 Pages

 

AT‑2View

Neighbour Notification Plan

2 Pages

 

 

 


 

Independent Hearing and Assessment Panel Meeting 7 March 2017

203 Burns Bay Road, Lane Cove

 

 

Subject:          2 Zeta Road, Lane Cove    

Record No:    DA16/181-01 - 75537/16

Division:         Environmental Services Division

Author(s):      Stan Raymont 

 

 

 

Property:

2 Zeta Road, Lane Cove

DA No:

DA 181/2016

Date Lodged:

7 October 2016

Cost of Work:

$200,000

Owner:

H C Seah & N J Hughes

Applicant:        

Hui Seah & Nicky Hughes

 

Description of the proposal to appear on determination

Extension of carport, deck and additional storey over existing dwelling house.

 

 

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 1a and 10b

Stop the Clock used

No

Notification

 

 

 

Neighbours                             1, 3, 5, 7 Zeta Road; 1, 3, 5, 7 Delta                                                Road; and 1, 3 Beta Road

Ward Councillors                   All Councillors & The Mayor

Progress Association             Osborne Park Residents Association

 

SITE

Property

Lot No. 2                                                  DP No. 826708

Area

255.7m2

Site location

 

The subject site is located on the northern side of Zeta Road near the eastern end.  The land falls from west to east.

Existing improvements

 

Existing improvements on the site consist of a split level single storey brick dwelling house with a pitched tiled roof.  On the western side is a single carport with a pitched tiled roof.

Shape

The site is rectangular in shape

Dimensions

Width – 20.92m                                        Depth – 13.04m

Adjoining properties

 

East – Drainage Reserve

West – Single storey weatherboard clad dwelling house

North – Two storey brick and weatherboard dwelling house

 

 

 

 

EXECUTIVE SUMMERY

 

·         The existing dwelling house has been constructed in accordance with development application approved by Council in 1992 for the construction of a detached dual occupancy and Torrens Title subdivision.

·         The site is small with an area of 255 sqm being less than the minimum LEP lot size of 550sqm.

·         As per the consent, Council imposed two covenants, one related to restricting the height of the building and the second required landscaping to be constructed in accordance with the approved plan.

·         The proposed development includes a first floor addition, the height of which would exceed the covenant, however would be within Council’s LEP height control.

·         The proposed development includes extension of existing carport to allow for onsite parking of a second car, however would be marginally different to the landscaping plan indicated in the covenant.

·         For the proposed development to proceed, it is recommended that the covenants be removed.

·         The proposed development would exceed the FSR of 0.5:1 . The proposed FSR is 0.6:1 which is consistent which Council policy for small lots.

·         The applicant has lodged a Clause 4.6 variation to vary the development standard. The objection is considered to be well founded and supported.

·         The application is supported and recommended as deferred commencement consent to consider whether the two covenants, placed by Council in relation to maximum height and landscaping in Development Application DA49/1992 for a detached Dual Occupancy and Torrens Title subdivision should be removed for the reasons discussed in the Report.

 

Site Location Plan and Neighbour Notification Plan attached (AT1 and AT2)

 

PREVIOUS APPROVALS/HISTORY

 

On 2 June 1992 Council approved Development Application D49/92 for a detached dual occupancy and Torrens Title subdivision.

 

Condition 10 of the approval given was:

 

10.       The establishment of a covenant burdening the proposed Lot 2 and favouring the Council of the Municipality of Lane Cove and the proposed Lot 1 which will effectively limit the height of any structure to be erected thereon to a maximum height of 3.6 metres (“height” being defined in Sydney Regional Environmental Plan No. 12 – Dual Occupancy).

 

A Section 88B restriction was placed on the property as follows:

 

4.         TERMS OF RESTRICTION FOURTHLY REFERRED TO IN THE ABOVEMENTIONED PLAN

 

No main building shall be erected on the site with a ceiling height greater than 49.40m Australian Height Datum.

 

This restriction shall not be released, varied or modified, without the consent of The Council of the Municipality of Lane Cove.

 

Subsequently the Restriction As To User – was altered to change the ceiling height of the dwelling to be 49.60 Australian Height Datum.

 

There also were concerns with the landscaping and the following Section 88B restriction was placed on the property:

 

5.         TERMS OF RESTRICTION FIFTHLY REFERRED TO IN THE ABOVEMENTIONED PLAN

 

The site is to be landscaped in accordance with drawing number 18492.DA1 pursuant to a Development Approval dated June 2, 1992 and to the satisfaction of Lane Cove Municipal Council prior to the use/occupation of the approved building works.

 

This restriction shall not be released, varied or modified, without the consent of The Council of the Municipality of Lane Cove.

 

Comment:

 

The above two form restrictions before Council to the proposed development. These restrictions would need to be removed by Council for the proposed development to proceed.

 

PROPOSAL

 

The proposal is to:

 

·         Remove the existing roof and construct an additional storey over the existing dwelling house.  The external walls of the additional storey are proposed to be clad with colorbond cladding and the proposed roof would be of a skillion design clad with colorbond cladding.

 

·         Extend the existing deck on the eastern side of the lower ground floor level by 600mm to the line of the existing 1200mm wide Drainage Easement and slightly extend it forward to the line of the front wall of the dwelling house.  Also create a new doorway and enlarge the existing window on the western side of the existing upper ground floor level.  Also, demolish the existing planter boxes.

 

·         Extend the existing carport by 2m to the western boundary.  Remove the pitched roof and construct a colorbond clad flat roof supported on four posts to the carport with a new 1.8m high gate to the front and new stairs to the rear.

 

 

PROPOSAL DATA/POLICY COMPLIANCE

 

Local Environmental Plan 2009

 

Zoning:           R2 Low Density                                 Site Area:       255.7m²

 

 

Proposed

Control

Complies

Floor Space Ratio

0.6:1

0.5:1

No

Height of Buildings

9.4m

9.5m

Yes

 

Comprehensive DCP

 

 

Proposed

Control

Complies

Front setback (min)

 

 

 

 

 

 

 

 

Dwelling Additional Storey – 550mm

 

 

 

 

Carport Roof – Zero

 

 

Consistent with area or 7.5m

 

 

 

 

 

 

 

Dwelling Additional Storey – No (Conditioned to comply, Draft Condition 5)

Carport Roof – May be permitted

Side setback (min)

 

 

 

 

 

Additional Storey – 1800mm

Carport – Zero

Lower Ground Floor Deck Extension – 1.2m

1200mm single storey

 

 

 

 

 

Additional Storey – Yes

Carport – Yes +

Lower Ground Floor Deck Extension – Yes

Rear setback (min)

 

Additional Storey – 1300mm (Unchanged)

<1000m²: 8m or 25%

 

No, however remains Unchanged

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

9.4m

 

7.0m

 

No

 

Maximum Ridge height

9.4m

9.5m

Yes

Subfloor height (max)

Unchanged

1.5m

Unchanged

Number of Storeys (max)

2

2

Yes

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

29.5%

 

 

 

35%

 

 

 

No, however the building footprint remains unchanged with the exception of the carport

Cut and Fill (max)

Unchanged

1m

Unchanged

Solar Access

 

3 hrs to north facing windows

3 hrs to north facing windows

Yes

 

Deck/Balcony depth (max)

3m

 

3m

 

Yes

 

Private open space

 

> 24m2

> 4m minimum depth

24 m² (min)

4m minimum depth

Yes

 

Basix

Yes

Required

Yes

 

+          Carports may be permitted to the side boundary where no unreasonable amenity impacts which is considered the present case.

 

Car Parking

 

 

Proposed

Control

Complies

Off-street spaces (min)

2

2

Yes

Driveway width

Unchanged

3m at the lot boundary

Unchanged

 

Carports within the Front Setback & Garages Facing the Street

 

 

Proposed

Control

Complies

Setback of Carport Posts (min)

1.2m

 

1m from street boundary

 

Yes

 

% of Allotment Width (garages & carports)

5.4m

 

50% of lot width or 6m, whichever is the lesser

Yes

 

 


 

Fences

 

 

Proposed

Control

Complies

Front fence height (max)

 

Unchanged

 

Solid:   900mm

Lightweight:     1.2m

Unchanged

 

Setback from front boundary if > 1.2m

N/A

 

1m

 

N/A

 

Side and rear fences

Unchanged

1.8m

Unchanged

 

REFERRALS

 

Development Engineer

 

No objections subject to recommended draft conditions.

 

Tree Assessment Officer

 

No objections subject to recommended draft conditions.

 

Landscape Architect

 

The comments of Council’s Landscape Architect, Open Space/Urban Space Design, were requested on this development application and are as follows:

 

“I have reviewed the DA documents/Plans in relation to the proposed carport extension for the abovementioned property.

 

Although the plan referred to in the covenant drawing no. 18492.DA1 is not a detailed landscape plan, it does outline areas where planting is to occur.

 

The proposed extension of the carport and associated car parking hard stand area would not detract from the existing street character and our Tree Preservation Officer does not have any issues with the removal of the existing trees to the western side of the existing structure.

 

In light of this information I have no issue allowing the extension of the carport and associated hard stand area to support a second vehicle.”

 

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

 

The proposal is permissible with development consent and complies with the LEP development standard for height. However the covenant in relation to the height would need to be removed by Council for the development to proceed.

 

Clause 4.4 Floor Space Ratio

 

The proposed Floor Space Ratio of 0.6:1 exceeds the Lane Cove Local Environmental Plan control of 0.5:1.  The applicant/owner has submitted an application under Clause 4.6 of the Lane Cove Local Environmental Plan for an exception to the development standard. Refer attached AT3.

 

Clause 4.6 (3) states:

 

Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

 

(a)  that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b)  that there are sufficient environmental planning grounds to justify contravening the development standard.

 

Preston CJ, in Wehbe v Pittwater Council [2007] NSWLEC 827, established a number of ways to determining that compliance with a development standard is unreasonable or unnecessary in the circumstances of the case. The most common approach is to establish that compliance with the objectives is achieved notwithstanding non-compliance with the particular standard.

 

Objective of the Floor Space Ratio is:

 

(1)(a)  to ensure that the bulk and scale of development is compatible with the character of the locality.

 

The site was created in 1992 subsequent to Council approving a Development Application for a detached dual occupancy and Torrens Title subdivision. The area of the site created as a result of this development is 225sqm which is substantially less than the minimum lot size of 550sqm indicated in the LEP.

 

A dwelling house with an FSR of 0.5:1 on a minimum block size of 550sqm block would have a floor area of 275sqm. A dwelling house with an FSR of 0.6:1 on the subject block with an area of 225sqm, would have a floor area of only 135sqm being significantly less than a compliant dwelling house on block of 550sq. The bulk and scale of the proposed development would be significantly less than that of a compliant dwelling house on a block of 550sq. It is considered that the objective of the FSR has been met and compliance with a development standard is unreasonable or unnecessary in the circumstances of the case.

 

Objectives for the R2 Low Density Residential Zone is:

 

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

The applicant proposes to increase the area of the existing dwelling house from the current area of 125m2  to not more than 135m2. This would be a modest increase but improve the amenity and liveability of the residents consistent with residential amenity of a detached single family dwelling area. It would not adversely impact upon the amenity of the adjoining dwellings.

 

The decision in Four2FivePty Ltd v Ashfield Council [2015] NSWLEC 90 indicates that the case should demonstrate that there are sufficient environmental planning grounds for the variation, identify particular to the circumstances of the proposed development and not simply grounds that apply to any similar development on the site or in the vicinity.

 

This lot is significantly smaller than the minimum lot size of 550sqm. It is Council’s policy to permit a higher FSR of 0.6:1 on small lots to allow for residential developments to be of an appropriate bulk and scale and provide for reasonable amenity as other dwelling houses within the zone. This is consistent with the applicant’s contention seeking an increased FSR to allow for a reasonable dwelling house.

The subject property, towards the east, adjoins a 6m wide drainage reserve which is well maintained ad landscaped. This reserve provides increased separation between the existing dwelling and the dwelling house towards the east of the reserve and provides an appearance of reduced building bulk. Given the slope of the land, the subject dwelling house is set well below the existing dwelling house towards the west (1Beta Road).

 

This Clause 4.6 for exception to a development standard was referred to Strategic Planning and their comments are attached AT4.

 

The applicant has lodged an objection under Clause 4.6 of the LEP for variation to the development standard. The objection has been assessed against the relevant Land and Environmental Court case law. The proposed development is considered to meet the objectives of the development standard not withstanding its numerical non compliance. In addition, it is considered that given the circumstances of the case there are sufficient planning grounds for the variation. It is considered that the variation is well founded and can be supported.

 

Other Planning Instruments

 

SEPP 55 Remediation of Land

 

The subject site and adjoining sites are zoned for residential purposes. Given the types of uses permissible within the residential zones, it is unlikely that the site would be contaminated.

 

APPLICABLE REGULATIONS

 

The Environmental Planning and Assessment Regulation 2000 indicates that the standards for demolition and removal of materials should meet with AS 2601-2001 and therefore any consent will require the application of a relevant condition seeking compliance with the Standard.

 

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 departure is discussed below.

 

Front Setback – Council’s DCP 2010 specifies:

 

·         The front setback of the building shall be consistent with the prevailing setback along the street.  Where there is no predominant setback within the street, the setback should be a minimum of 7.5m.  Irregular sites may be considered on their merits.

 

·         The front setback is to be free of structures such as swimming pools and ancillary elements such as rainwater tanks and air conditioning units.  In certain circumstances carports and garages may be permitted in the front setback (see Section 1.9 Car Parking).

 

·         In general, no part of a building or above ground structure may encroach into a setback zone.  Exceptions are awnings, balconies, blade walls, bay windows and other articulation elements up to a maximum of 500mm.

 

The subject site is unusual in that it is a small site with a frontage of 20.92m, a depth of 12.87m and an area of only 255.7m2.

 

The walls of the existing dwelling house are shown to be setback 1200mm from the front boundary and the walls of the proposed additional storey cantilever out to 600mm from the front boundary.  Despite having regard to the dimensions and location of this lot, the existing dwelling house’s location and the topography of the site, the 600mm setback for the walls of the additional storey is considered unsatisfactory and it is considered that the proposed setback of the walls of the additional storey should be in line with the ground floor walls; ie. setback 1200mm from the front boundary.  A draft condition has been imposed requiring this (see draft Condition 5).


 

Height – Council’s DCP 2010 specifies:

 

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

 

·         The maximum height of a parapet roof is to be 600mm above the maximum height of a dwelling.

 

·         The maximum ridge height for a pitched roof house is 9.5m above ground level (existing).

 

The maximum roof height of the skillion roof of the proposed additional storey is 9.4m.

 

A Section 88B restriction was placed upon the property as part of subdivision which occurred in 1992 under SEPP 25 (Amendment 2 – Dual Occupancy Subdivision).  In part, this restricted the ceiling height of the main building to a height of “49.60 Austn Height Datum” (also known as RL49.60).  Under the terms of the Section 88B Covenant over this property, this restriction can be suspended by Council, for example as the result of a development application to increase the height.

 

The maximum wall height is 9.4m that is measured from the existing ground level to the top of the skillion roof.

 

Having regard to the location, the proposed design and the topography, the maximum wall height is considered satisfactory and not to adversely impact on the amenity of the adjoining dwelling houses or the streetscape.

 

Soft Landscaping – Council’s DCP 2010 specifies:

 

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

 

The existing landscaped area is 32% and the proposed landscaped area is 29.5%.  Having regard to the site, the existing development and the need to increase the size of the carport to accommodate two cars, the proposed landscaped area is considered satisfactory.

 

The Section 88B restriction placed on the property as part of the subdivision which occurred in 1992 under SEPP 25 (Amendment 2 – Dual Occupancies Subdivision) which required the site to be landscaped in accordance with drawing number 18492.DA1 pursuant to a Development Approval dated June 2, 1992 and to the satisfaction of Lane Cove Municipal Council prior to the use/occupation of the approved building works should be suspended.

 

Comment:

 

The objectives for landscaped area are:

·         To provide privacy and amenity.

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

·         To conserve significant natural features of the site.

·         To assist with on-site stormwater management.

 

The proposed development would continue to provide adequate privacy between the adjoining developments. No concerns are raised in relation to the removal of the trees to the western side of the existing structure for the extension of the carport. Stormwater management remains unchanged. It is considered that the objectives of landscaping are met notwithstanding a minor numerical noncompliance with the percentage requirement of soft landscaping.

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

 

One submission has been received in response to the notification of this proposal.  The issues raised in the submission may be summarised as follows:

 

Submission from the owners of 1 Beta Road

 

Our Concerns and Objections:  Extension for the Carport and Driveway

 

1.         Removal of the 2 trees which were planted in 1993 when we built this little cottage presently 2 Zeta Road.  The purpose then and now is to uphold privacy for and from the immediate neighbours and to soften the harsh look of concrete and glare from the sun reflecting on the roofs surfaces.

 

Officer’s Comment:

 

Council’s Tree Assessment officer has advised as follows:

 

“Widening of the carport requires the removal of two small Bottle brush trees and I have no objections to their removal given they are only small trees.”

 

Comment:

The level of the proposed first floor balcony is less than the level of the proposed balcony towards the west. It is considered that overlooking from the proposed balcony would not be an issue and as such, the removal of the trees would not result in a privacy issue. In addition, given that the balcony is accessed from bedrooms and not a living room, it is considered that the balcony would be of low intensity use. For abundant caution the applicant has proposed a retractable shade screen across the whole of balcony opening towards the west to mitigate any potential privacy concern.

 

2.         The proposed and enlarged roof of this carport also being a flat roof in metal sheeting will produce a glare so strong that it will be unbearable for us from all visible rooms facing west especially from our verandah which we use all year round extensively and constantly.

 

Officer’s Comment:

 

The applicant would address this concern by the inclusion of a draft condition applied as follows:

 

(63) All metal deck external walls and roofs being of a ribbed or corrugated metal profile in a mid to dark colour range with an anti glare finish.  The intent of the condition is to reduce sun reflection and glare to protect the amenity of the surrounding residents.

 

3.         The proposed carport is planned to be built so close to our open lattice fence that in the event of any downpour, surface run-offs will occur and possibilities of flooding in my carport poses a real threat to us.  On windy days, all leaves and dirt will be blown onto my face from this carport roof, which is resting on my eye level or just above.

 

Officer’s Comment:

 

The ground level in the adjoining carport (1 Beta Road) is approximately 900mm above the ground level of the proposed widened carport. It is not likely that any storm water from the subject site would drain to 1 Beta Road. Any stormwater from the carport roof would be connected to the existing storm water drainage system and is not anticipated to be impacted by overland flows from this site.

 

The disposal of stormwater from the proposed carport as extended has been covered by the Development Engineer in Condition 42 which is (S2) Stormwater Requirement.

 

4.         By allowing extending and widening of the driveway also poses a threat to losing all or part of the existing flora on this Crown Land (Picture A).  There is at present on our side, a hedge that we spent money, time and efforts to upkeep for the past 25 years.  The purpose is to shade very intrusive headlights from cars coming from round and up the cul-de-sac on Zeta Road.  On the side of 2 Zeta Road, the before owner Mrs Tait wishes to have the existing flora kept as is.

 

Officer’s Comment:

 

The hedge is located on Council’s land and there does not appear to be any necessity for it to be removed.

 

5.         Although the proposed widening of the driveway may well fall within the maximum allowable 6m width, it is reasonable for us to ask of Council to please consider the effects it will bring on us by losing the Crown Land flora.  Also, I like to point out that for this plot of small land, is it justifiable to ask for such a big driveway leading to a double carport with a wide gate?  In our opinion, it’s not in proportion and would not look good to the aesthetics in the vicinity.

 

Officer’s Comment:

 

As indicated above, there would not be any need for the removal of flora on Council land. Council permits a double carport and the proposed carport is considered aesthetically acceptable. No concerns are raised in relation to the width of the driveway.

 

6.         The Proposed Development (Building itself):  Impact.

 

The proposed design will NOT retain the same sense of being “tucked-in” nor will it add to the aesthetics and vitality of the immediate vicinity as claimed.

 

The material used for the walls of the proposed second floor will be in metal sheeting.  If proposal be allowed to go through as is, with the two 23 years old trees be moved to build this carport, I will be subject forever to have to look out to a very reflective carport roof and metal sheeting external walls of the second storey without any shading from trees.  A lot of problems will then arise from these issues that I have put forward to you today.

 

At present, my open side of the house is facing west.  The French windows in my verandah are always left open to ventilate the kitchen and dining room where there are no windows.  It’s a daunting fact that in future I might be only able to look at a metal wall plus a verandah facing my direction.

 

While people have the rights to do alterations, I have the sense after reading their Statement of Environmental Effects, that everything they propose to do seems to work for their privacy more than anything else.  Above all, all possible flora and trees and garden debs from their property and Crown Land will be removed according to their proposal, without too much attention to the bad and everlasting effects it will bring on to us.

 

Officer’s Comment:

 

The concern raised in relation to reflective material used for the roof and walls is addressed by the draft condition imposed that all metal deck external walls and roofs are to be of a ribbed or corrugated metal profile in a mid to dark colour range with an anti glare finish.  The intent of the condition is to reduce sun reflection and glare to protect the amenity of the surrounding residents.

 

The concern in relation to privacy has been addressed earlier in the report. In addition, from an inspection on 13 December 2016, the proposed verandah in 2 Zeta Road and the windows of 1 Beta Road are approximately 9m apart and the upper floor windows in 1 Beta Road would look down onto the proposed verandah. The verandah as proposed is considered satisfactory and not to require screening. In addition, as indicated previously in the report, for abundant caution the applicant has proposed a retractable shade screen across the whole of balcony opening towards the west to mitigate any potential privacy concern. It is considered the privacy concern has been adequately addressed.

 

7.         The plans show that the rear planter boxes be removed and the courtyard leveled.

 

The planter boxes are sitting on a slope.  To remove them all and make it level with their existing ground, a huge amount of earth have to be taken away.  The drop from my land to their proposed level will be very high (a few metres).  It will be dangerous for us to use this sport where we hang our laundry.

 

The planter boxes were put in as a good retaining wall, to avoid the steep drop and not to loosen the foundation ground on a slope and flooding.  Also underneath the planter boxes on the side is the sewerage running on a slant downhill.  To level the ground would ruin the existing sewerage system.  I would like to bring to your attention that, if we did not put the planter boxes in then in 1993 and have it leveled, we would have to reinforce the drop with steel and concrete structures.  It was not allowed by Council then.

 

Therefore we have to object to the removal of the planter boxes and courtyard leveled for safety issues for both human, the land and keep the sewerage and stormwater system intact.

 

Officer’s Comment:

 

A draft condition is imposed that the area where the planter boxes are proposed to be removed being adequately retained.

 

CONCLUSION

 

The proposed development would be within the LEP height control. Council in 1992, imposed a covenant to restrict the height. For the proposed development which includes a first floor addition to proceed, the covenant would need to be removed. The first floor addition would not impact upon the amenity of the adjoining development with regard to overshadowing or impact upon privacy. The first floor addition would provide a modest increase of the existing dwelling on a small lot and improve the amenity of the existing dwelling house. In this regard it is considered that the covenant to restrict the height be removed.

 

The covenant in relation to landscaping requires the site is to be landscaped in accordance with the approved drawing. The proposal to increase the carport would permit onsite parking for a second car. Council permits double carports. In this regard it is considered that to allow for the extension of the existing carport to a double carport, the covenant to landscape in accordance with the previously approved plan be removed.

The Clause 4.6 exception to development standards application under the provisions of the Lane Cove Local Environmental Plan for the 0.6:1 is considered well foundered and is recommended for approval.

 

On balance it is considered that proposed development would be reasonable and therefore recommended for approval. It is recommended that the two covenants in relation to maximum height and landscaping placed by Council be removed for the proposed development to proceed.

 

 

 

RECOMMENDATION

 

PART A

 

The Independent Hearing & Assessment Panel consider whether in their view the two covenants, placed by Council in relation to maximum height and landscaping in Development Application DA49/1992 for a detached Dual Occupancy and Torrens Title subdivision should be removed for the reasons discussed in the Report.

 

PART B

 

Should Council resolve to remove the convents indicated in Part A:

 

That pursuant to section 80(1)(a) of the Environmental Planning and Assessment Act 1979, the Council grants development consent to:

·         Development Application DA 181/16

·         For the extension of the carport and deck and the construction of an additional storey

·         On 2 Zeta Road, Lane Cove

 

subject to the following conditions:

 

1.    (20) That the development be strictly in accordance with drawing numbers SK100A, SK101A, SK102A, SK201A, SK302A dated 28 November 2016; and SK200, SK300, SK301, Site Analysis and Site Plan dated 3 October 2016; except as amended by the following conditions.

 

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

 

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

 

4.    The maximum height of the roof of the proposed additional storey is not to exceed 9.5m above the existing natural ground level.

 

5.    The walls of the proposed additional storey being setback 1200mm from the front (Zeta Road) boundary.  Plans being altered to comply prior to the issue of a Construction Certificate.

 

6.    The proposed carport gate being at least 50% see through.  Plans being altered to comply prior to the issue of a Construction Certificate.

 

7.    The area where the planter boxes are being removed being adequately retained.

 

8.    (11)  The approved plans must be submitted to Sydney Water online approval portal “Sydney Water Tap In”, please refer to web site www.sydneywater.com.au. This is to determine whether the development will affect Sydney Water’s sewer and water mains, stormwater drains and/or easements, and if further requirements need to be met. An approval receipt with conditions shall be issued by Sydney Water (if determined to be satisfactory) and is to be submitted to the accredited certifier prior to the issue of a Construction Certificate.

 

9.    (12) Approval is subject to the condition that the builder or person who does the residential building work complies with the applicable requirements of Part 6 of the Home Building Act 1989 whereby a person must not contract to do any residential building work unless a contract of insurance that complies with this Act is in force in relation to the proposed work.  It is the responsibility of the builder or person who is to do the work to satisfy Council or the PCA that they have complied with the applicable requirements of Part 6.  Council as the PCA will not release the Construction Certificate until evidence of Home Owners Warranty Insurance or an owner builder permit is submitted. THE ABOVE CONDITION DOES NOT APPLY TO COMMERCIAL/INDUSTRIAL CONSTRUCTION, OWNER BUILDER WORKS LESS THAN $5000 OR CONSTRUCTION WORKS LESS THAN $20,000.

 

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

 

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

 

            Monday to Friday (inclusive)                          7.00am to 5.30pm

            Saturday                                                         7.00am to 4.00pm

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

 

            A Notice/Sign showing permitted working hours and types of work permitted during those             hours, including the applicant’s phone number, project manager or site foreman, shall be             displayed at the front of the site.

 

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

 

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

 

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

 

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

 

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

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

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

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

 

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

 

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

 

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

 

a)  The pier holes/pads before filling with concrete.

b)  All reinforcement prior to filling with concrete.

c)  Installation of steel beams and columns prior to covering.

d)  Waterproofing of wet areas.

e)  Stormwater drainage lines prior to backfilling.

f)   Completion.

 

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

 

a)  Retaining walls;

b)  Footings;

c)  Reinforced concrete work;

d)  Structural steelwork;

e)  Upper level floor framing.

 

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

 

20.  (63) All metal deck external walls and roofs being of a ribbed or corrugated metal profile in a mid to dark colour range with an anti glare finish.  The intent of the condition is to reduce sun reflection and glare to protect the amenity of the surrounding residents.

 

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

 

a          The roof framing; and

b          The completion of works.

 

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

 

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

 

23.  (72) The demolition works being confined within the boundaries of the site.

 

24.  (77) All spillage deposited on the footpaths or roadways to be removed at the completion of each day’s work.

 

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

 

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

 

27.  (130)  Compliance with the Waste Management Plan submitted along with the application.

 

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

 

29.  (141) Long Service Levy  Compliance with Section 109F of the Environmental Planning and Assessment Act 1979; payment of the Long Service Levy payable under Section 34 of the Building and Construction Industry Long Service Payments Act 1986 (or, where such a levy is payable by instalments, the first instalment of the levy) – All building works in excess of $25,000 are subject to the payment of a Long Service Levy at the rate of 0.35%.

 

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

 

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

 

Tree Preservation Conditions

 

31.  (300)  Lane Cove Council regulates the Preservation of Trees and Vegetation in the Lane Cove local government area. Clause 5.9(3) of Lane Cove Local Environmental Plan 2009 [the "LEP"], states that a person must not ringbark, cut down, top, lop, remove, injure or wilfully destroy any tree or other vegetation to which any such development control plan applies without the authority conferred by development consent or a permit granted by the Council. Removal and/or pruning of trees or vegetation protected by the regulation is an offence against the Environmental Planning and Assessment Act 1979 (NSW). The maximum penalty that may be imposed in respect to any such offence is $1,100,000. The co-operation of all residents is sought in the preservation of trees in the urban environment and protection of the bushland character of the Municipality. All enquiries concerning the Preservation of Trees and Vegetation must be made at the Council Chambers, Lane Cove.

 

32.  (302)  The applicant must obtain a Tree Preservation Order Work Authority prior to removal of any trees. A permit must also be obtained prior to pruning of any tree including the cutting of tree roots greater than 40mm in diameter. Trees approved for removal on the stamped plans are exempt from this condition of consent.

 

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

 

STREET TREE BOND

 

34.  (new) Pursuant to Section 80A(6)(a) and (7) of the Environmental Planning and             Assessment Act 1979, the applicant must, prior to the issue of the first construction             certificate, provide security in the amount of $5,000 (by way of cash deposit with the             Council, or a guarantee satisfactory to the Council) to ensure Council’s Reserve trees that         are on the public road reserve immediately adjoining the land subject to this development   consent is protected during development.

 

            Council may apply funds realised from the security to meet the cost of making good any             damage caused, as a consequence of the doing of anything to which this development             consent relates, to the said trees. If the cost of making good any damage exceeds the             amount of the security provided by the applicant, additional security must be provided by             the applicant to the Council to cover the cost of making good the damage.

 

            The applicant shall contact Council to have the street tree inspected following issue of the             final Occupation Certificate to trigger release of the street tree bond.

 

 

 

General Engineering Conditions

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Engineering conditions to be complied with prior to Construction Certificate

 

43.  (S2) Stormwater Requirement: The stormwater runoff from the new and altered             impervious areas within the development shall be connected to the existing drainage             system in accordance with the requirements of Lane Cove Council’s DCP-            Stormwater     Management.

 

            The existing stormwater system is to be certified that it is in good working order and meets             the requirements set out in Part O, Council’s DCP-Stormwater Management. The             certification is to be carried out by a fully licensed and insured plumber or a suitably             qualified engineer prior to the issue of the Construction Certificate.

            Where an existing element does not comply with current standards the subject element is to             be replaced.

            Where the existing system does not comply with Part O, Councils DCP-Stormwater             Management a drainage design is required. The stormwater drainage plan is to be prepared             and certified by a suitably qualified engineer and submitted to the Principal Certifying             Authority prior to the issue of the Construction Certificate. The design is to be certified that it             fully complies with, AS-3500 and Part O, Council's DCP-Stormwater Management.

 

44.  (B1) Council infrastructure damage bond: The applicant shall lodge with Council a $3000 bond or bank guarantee. The bond is to cover the repair of damage to Council's    roads, footpaths, kerb and gutter, drainage or other assets as a result of the development. The bond will be released upon issuing of the Occupation Certificate. If Council determines that damage has occurred as a result of the development, the applicant will be required to repair the damage. Repairs are to be carried out within 14 days from the notice. All repairs are to be carried in accordance with Council’s requirements. The full bond will be retained if Council’s requirements are not satisfied. Lodgement of this bond is required prior to the issue of the Construction Certificate.

 

Engineering condition to be complied with prior to commencement of construction

 

45.  (C2) Erosion and Sediment Control: The applicant shall install appropriate sediment control devices prior to the start of any works on the site. The devices shall be maintained during the construction period and replaced when necessary.

 

Engineering condition to be complied with prior to Occupation Certificate

 

46.  (M2) Certificate of Satisfactory Completion:  Certificates from a registered and licensed Plumber or a suitably qualified Engineer must be obtained for the following matters. The plumber is to provide a copy of their registration papers with the certificate. The relevant Certificates are to be submitted to the Principal Certifying Authority prior to issue of any Occupation Certificate.

 

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

 

 

 

 

 

 

 

 

 

Michael Mason

Executive Manager

Environmental Services Division

 

 

ATTACHMENTS:

AT‑1View

Site Location Plan

2 Pages

 

AT‑2View

Neighbour Notification Plan

2 Pages

 

AT‑3View

Clause 4.6 variation by applicant

2 Pages

 

AT‑4View

Section 4.6 Exemption application - 2 Zeta Road, Lane Cove - FSR Provision)

6 Pages

 

 

 

 

 

 

Subject:          203 Burns Bay Road, Lane Cove     

Record No:    DA16/205-01 - 6325/17

Division:         Environmental Services Division

Author(s):      Andrew Thomas 

 

 

 

Property:

203 Burns Bay Road, Lane Cove

DA No:

D205/16

Date Lodged:

21.11.16

Cost of Work:

Nil

Owner:

V and C Qasabian c/- 7- Eleven Stores Pty Ltd

Applicant:        

Milestone (Aust) Pty Ltd

 

Description of the proposal to appear on determination

Extend operating hours to 24 hours, seven days a week.

Zone

R3 Medium Density Residential

Is the proposal permissible within the zone

Yes, under existing use rights 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 6 and 10b

Stop the Clock used

No

Notification

Neighbours                             125 - 141 and 124 and 126 Centennial Avenue; 190 - 218 and 191 - 223 Burns Bay Road; 32 and 34 Figtree Street.

Ward Councillors                   Central

Progress Association             None operating

 

REASON FOR REFERRAL

 

This development application is referred to the Independent Hearing and Assessment Panel (IHAP) for determination given residents  concern about the potential impacts associated with increasing the operating hours of the existing service station and convenience store to 24 hours a day, seven days a week.  

 

EXECUTIVE SUMMARY

 

·         The site is located at the intersection of Burns Bay Road and Centennial Avenue.

·         The site is triangular and has an area of about 750m2.

·         Existing on the site is a 7-Eleven service station and convenience store.

·         The site is in Zone R3 Medium Density Residential, and surrounding it are dwelling houses.

·         The application proposes to increase its existing approved operating hours of 6am to 11pm, seven days to 24 hours, seven days.

·         Nine submissions have been received from neighbours in relation to the proposal. Concerns raised include noise and other adverse impacts, including those caused by the current use.

·         Although a service station is not a permissible use in the R3 zone a service station has operated from the site since 1970, and probably earlier.

·         A service station became a prohibited use on this site when the Lane Cove Planning Scheme Ordinance was gazetted in December of 1972. Although the existing use became non - conforming from that time, it has been in continuous operation since, therefore the service station operates with existing use rights. The proposal is therefore permissible with consent. 

·         The major issue concerning the proposal is balancing the concerns of local residents against the potential impacts of the proposed 24 hours a day, seven day use of the service station.

·         On balance, it is recommended that the proposed extension of the existing operating hours is not supported because of the potential adverse impacts on surrounding residents who are unlikely to benefit from the increased trading.

 

SITE

 

The subject site is a triangular lot located at the intersection of Burns Bay Road and Centennial Avenue. The site has a frontage of approximately 38m to the former and 47m to the latter, an eastern boundary of 38m to an adjoining residential lot and an area of about 750m2. The site has vehicular access to and from Burns Bay Road and Centennial Avenue, and its legal description is Lot 1 DP 126742.

 

Located on the site is a 7 - Eleven service station and convenience store. A single storey building is located along the site’s eastern (rear) boundary, and there is a covered forecourt on this building’s west side. At the northern end of this building is a waste dumpster, a condenser, air conditioning units and a bottled gas store, and at its southern end are air, water and ice storage facilities, a firewood store and a liquefied petroleum gas (LPG) tank. 

 

Of the forecourt’s 8 pumps, 6 dispense Mobil fuel and 2 dispense LPG. The convenience store sells pre - packaged hot and cold foods, hot and cold beverages, confectionary and ice creams, newspapers and magazines and a range of everyday convenience items that include food and general goods. There is on - site parking for 4 cars.

 

The locality is predominantly residential and is characterised by dwelling houses that include both single and two storeys. However, to the southwest of the site, where Centennial Avenue becomes Burns Bay Road and intersects with Best Street is an ambulance station. To the northeast of the site, at 126 Centennial Avenue, is a two storey dwelling house, adjacent to which is an upholstery business in the same ownership and that operates from a single storey building at 124 Centennial Avenue close to the corner of Fig Tree Street. 

 

Site Plan and Notification Plan attached (AT1 and AT2).

 

PROPOSAL

 

The application proposes to increase the existing operating hours of 6am to 12 midnight, seven days to allow the use to operate 24 hours a day, seven days.

 

The applicant’s Statement of Environmental Effects includes those relatively minor external works and other changes recommended by the applicant’s acoustic consultant required to reduce both the perceived and potential noise impacts associated with the proposed increase in operating hours.  

 

PREVIOUS APPROVALS/HISTORY

 

7 - Eleven took over the previous Burmah petrol station that existed on the site in 2000.

 

1.  DA 443/1985

 

In December 1985 Council approved the upgrade of the existing service station on the site so that it could operate as a self - service facility.

 

A letter from the site owners (who are also its current owners) stated that in 1970 the Department of Main Roads resumed a large portion of the site which effectively removed all of its car parking. This was acknowledged in the assessment report without the report confirming when the use commenced.

 

2.  DA 115/1993

 

In February 1994 Council approved a new service station canopy, new shop facilities and an LPG gas tank and dispensing facilities. Condition 9 of the approval stated:

 

“The hours of operation of the premises shall be between the hours of 6.00 a.m. to 11.00 p.m. daily”

 

The assessment report stated that the application was “…. a refurbishment of a service station which exists under existing use rights in a Residential 2 (A1) zoning”.

 

3.  BA 222/1995

 

Approved the works required under DA 115/93 in August 1995.

 

4.  DA191/2012

 

Under delegated authority in December 2012, Council approved a replacement pole sign for the existing 7- Eleven service station; a condition prevented its illumination between the hours of 12 midnight and 6am. Council issued the construction certificate for this sign in February 2013.

 

The assessment report confirmed that the “…service station use enjoys existing use rights.”

 

EXISTING USE RIGHTS

 

(i)   Legislation

 

A service station is prohibited in Zone R3 Medium Density Residential under the Lane Cove LEP 2009.  This development application that seeks Council’s consent to increase the operating hours of the existing service station, relies upon existing use rights legislation under the Environmental Planning and Assessment Act 1979 (the Act) and the Environmental Planning and Assessment Regulation 2000 (the Regulations).

 

The object of existing use provisions in the legislation is to permit the continuation of a use, or a building, or land, for any purpose for which it was used immediately before the passing of legislation that would otherwise prohibit that particular use. 

(ii)   Lane Cove planning instruments

 

A review of the earlier sub - heading Previous Approvals/ History confirms that a service station was operating on the site by 1985, and perhaps before 1970. In 1972 the Lane Cove Planning Scheme Ordinance (LCPSO) was gazetted and the site was zoned Residential “A1” which prohibited service stations and therefore the use became non - conforming from that date.

 

On 16 October 1987 the LCPSO was repealed when the Lane Cove LEP 1987 (the 1987 LEP) was gazetted.  Under the 1987 LEP a service station was also prohibited in the Residential “A1” Zone.

 

As the use has continued operations since at least the 1970s it is an existing use.

 

(iii)   Intensification

 

Nothing in the Act, or an environmental planning instrument, prevents an existing use from continuing. The Act states that the Regulations …may make provision for or with respect to existing use that may include rebuilding, enlargement or expansion or intensification. Development consent is required under the Regulations for any rebuilding, enlargement or expansion or intensification of an existing use.

 

REFERRAL:  Manager Environmental Health (MEH)

 

Council’s MEH has confirmed that if the proposal is supported that this is subject to:

 

·         a temporary consent of 12 months to allow noise monitoring to be undertaken; and

·         draft conditions.

 

ASSESSMENT

 

The Environmental Planning and Assessment Act, 1979: s.79C Evaluation - Matters for consideration

 

S79C(1)(a)(i) ANY ENVIRONMENTAL PLANNING INSTRUMENT

 

1. the Lane Cove Local Environmental Plan 2009 (the LEP)

 

(i) Zone

 

The subject site and sites to the north, east and west of the site are in Zone R3 Medium Density Residential under the LEP, whilst sites to the south of the site are in Zone R2 Low Density Residential under this same instrument. The relevant objectives of Zone R3 are:

 

·         To enable other land uses that provide facilities or services to meet the day to day needs of residents.

·         To maximise the residential amenity of medium density housing in the area.

 

These two objectives would normally be relevant to the development of a service station if it was permissible in Zone R3 because:

 

·         whilst the existing service station and its convenience store is a use that provides facilities,  these are generally not those required to meet the day to day needs of residents; and

·         by extending its current hours of operation, the current use would not maximise the residential amenity of residences in the area; indeed, by extending its current hours of operation the use has the potential to threaten the current level of amenity of those residents close to the site. 

 

However as the development application has been submitted under existing use rights the objectives of this zone do not apply.

 

Sites to the south of the site are zoned R2. An objective of the R2 Zone is:

 

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

Similarly, whilst a service station is also not a permissible use in the R2 Zone, the potential impacts associated with an increase in the current operating hours might not achieve this objective.

 

(ii) Uses

 

The existing use of the site comes under the definition of a service station, which the LEP defines as follows:

 

service station means a building or place used for the sale by retail of fuels and lubricants for motor vehicles, whether or not the building or place is also used for any one or more of the following:

(a)  the ancillary sale by retail of spare parts and accessories for motor vehicles,

(b)  the cleaning of motor vehicles,

(c)  installation of accessories,

(d)  inspecting, repairing and servicing of motor vehicles (other than body building, panel beating, spray painting, or chassis restoration),

(e)  the ancillary retail selling or hiring of general merchandise or services or both.

 

A service station is a use prohibited in the R3 Zone. However, the earlier section of this report entitled Previous Approvals/History, confirmed that the site has existing use rights that has allowed its use as a service station under s.106 of the Environmental Planning and Assessment Act, 1979 (the Act). Further, the Environmental Planning and Assessment Regulation 2000 (the Regulations) allows for certain development to be carried out to an existing use with the consent of Council. Under clause 41 of the Regulations an existing use may, inter alia:

 

(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 ……………

 

Therefore Council may allow the proposed intensification of the existing service station under existing use rights.

 

2. SEPP 55 Remediation of Land

 

The subject site and adjoining sites are zoned for residential purposes. Although the subject site has a contamination audit because it has underground fuel storage tanks, these tanks would not be affected by the proposed increase to the trading hours of the existing service station.

 

SECTION 79C(1)(a)(iii) ANY DEVELOPMENT CONTROL PLAN (DCP)

 

Lane Cove Council’s Development Control Plan 2009 (the DCP)

 

Although the application does not propose signage, existing signage would need to be illuminated to address the proposed extended operating hours.

 

As signage is permissible in the R3 Zone Part N of the DCP Signage and Advertising is relevant.  Clause 3.9 under this part addresses Illuminated Signage, an objective of which is to preserve and enhance residential amenity.

 

Whilst no specific concern was raised in neighbour’s submissions to the proposal about the illumination of the existing signage on the site, some submissions raised concerns about the level of illumination within the convenience store and from the external lighting of the site. Illumination could become more of an issue if the use operates for 24 hours.

 

SECTION 79C(1)(b) THE LIKELY IMPACTS OF THE DEVELOPMENT


1.  Built

 

Whilst the proposal should have no impact on the built environment per se, the extended operating hours during the night could have an adverse impact on some residences in the area.

 

The applicant states that there would be no change to either the existing external or internal lighting of the building. However, both the illumination of the premises and headlight glare have been raised as concerns by some residents.

 

The applicant states that headlight glare caused by vehicles entering and leaving the site will be minimal, and residences that are directly opposite the site on both Burns Bay Road and Centennial Avenue are covered by a vegetative buffer, fences up to 2m high.

 

Some of the properties opposite the site have a front boundary fence between about 1.6m and 1.7m high, or have a natural hedge, or both, and some are single storey and others are two storeys. Gaps within boundary fencing or natural screening could affect some residents because of vehicle headlights, and if this is the case, this impact would increase if the current operating hours were extended.

 

2.  Social

 

Whilst the proposed additional operating hours would increase the opportunity to purchase fuel and a range of convenience items, it is doubtful that local residents would require either fuel or convenience items during the proposed extended trading hours. By contrast, the facility’s greater impact would be the opportunity for these same items to be offered to passing motorists.

 

The applicant confirms that whilst the premises implement the principles of Crime Prevention Through Environmental Design changes to the building are not required, adding that extended trading will contribute to the safety of the Lane Cove public domain. The applicant confirms that additional operational strategies to manage safety and security for both the premises and surrounding area are included in the application’s Plan of Management. By contrast, some residents suggest that the opposite would be the case because their concern is that the extended use would attract unsavoury characters  and people who are likely to be intoxicated.

 

Extended trading hours would attract customers to use the facility either to refuel their vehicle and/or purchase food, beverages or convenience goods, and this could result in voices being raised, and this is more likely if these customers are intoxicated.

 

3.  Economic

 

The extended hours could create generate local competition in the sale of both fuel and convenience items. If this occurs it could benefit local residents as well as passing motorists. 

 

SECTION 79C(1)(c) THE SUITABILITY OF THE SITE FOR THE DEVELOPMENT 

 

The site has been in continuous use as a service station for more than 45 years. The site is not constrained by any natural features, nor is it bush fire prone land, and its dual vehicular access is an advantage based on its location at the intersection of two roads. As it currently operates under existing use rights the intensity of its use may be increased.

 

The applicant states that the site would provide convenience retailing to the local community, particularly for the provision of fuel and coffee, and certain other products for the local workforce and community. However, some residents believe that this type of retailing is already catered for and/or there is not a significant demand. It is unlikely that local residents would either purchase fuel during the middle of the night when this could be done at other times, or hot beverages when these could easily be prepared at home. Also, it is debatable that there is a local workforce requiring these items.

 

With extended operating hours the potential for anti - social behaviour could increase. In a residential area increasing noise levels could affect local residents when they are asleep, making the site unsuitable to operate for 24 hours, seven days a week. From responses to Council’s notification some neighbours are already affected by some of the site’s current activities, including disturbance to their sleep.

 

The additional opportunities that increased operating hours would offer passing motorists does not make the site more suitable. Indeed, from a summary of the submissions received to the proposal that follows some local residents are already adversely affected by the current operating hours of the existing use. 

 

SECTION 79C(1)(d) RESPONSE TO NOTIFICATION/SUBMISSIONS

 

Nine submissions were received in response to Council’s notification of the proposal, some of whom live close to the site. The applicant confirmed in February 2017 that it did not intend to respond to the public submissions. A summary of the concerns raised, and a response to those concerns, follows.

 

1. Disruptions

 

Will adversely affect the quality of our lives, particularly sleep:

 

·         light and noise enter our bedroom: lights stay on all night, and noise is caused by the slamming of car doors, loud conversations, fuel nozzles and the revving of engines as cars accelerate off the site;

·         many residents suffer sleep disturbance during current operating hours.

·         Currently petrol is delivered in the middle of the night and are woken by petrol truck horns regularly in the early hours of the morning.

 

Comment

 

The applicant has confirmed that the external lighting of the building on the subject site, and its internal illumination, would not change.

 

2. Concerns

 

Often hear vehicles speeding along Penrose Street – the proposal gives drivers a reason to stop at this site; recently there was a fatality close to the site. 

 

Will attract unsavoury characters, and people who are intoxicated may damage or vandalise properties and lower their value, and increases the risk of break-ins and ram raids.

 

Some young men late on a Friday night, and at the weekend, eat and drink outside the service station and this would only significantly increase - their noise has a greater impact than that of passing traffic; creates a concern for the safety of local residents and this situation can only worsen.

 

Constantly clean up rubbish left by customers, and this will get worse.

 

Would be affected by the smell of hot food should the use go to the obvious next stage and create an all - night eatery.

Serving hot food encourages people out onto the street; people near this site have been aggressive and drunk. 

 

Comment

 

People travelling in a westerly direction along Penrose Street could cross Burns Bay Road to use the facilities within the Caltex 24 hour service station where these two streets intersect. Drivers travelling in the opposite direction along Penrose Street would have turned right at this same intersection and therefore passed this same Caltex outlet. Consequently, drivers using Penrose Street would have to go out of their way to use the subject site.

 

Whilst the additional trading hours could attract such people, Council’s Manager Environmental Health (MEH) has confirmed that Council has not received reports of poor behaviour in the last 6 years (i.e. since the appointment of the current MEH). Also, the applicant’s Plan of Management includes procedures that 7- Eleven staff must adopt to address such incidents and these include a 24 hour incident reporting/emergency response service and contact with emergency services.

 

The use of the premises as an all - night eatery would require a separate application.

 

3. Unnecessary

 

Wonder if the effort put into this proposal, and the costs associated with having longer hours, justifies an extra 30 - 36 customers.

With only 5 - 6 customers per hour predicted there is little need, or public interest, for this proposal.

Not required by locals.

 

Disruption to local residents is not worth minor increase in business - additional customers won’t make much difference to the business, yet the negative impact to residents will be greater and specifically in the areas of noise, crime, pollution and by lowering property values.

With so few additional customers seems superfluous to have another service station operating 24 hours.

 

Site is not on a major highway and therefore does not need to operate 24 hours a day.

A 24 hour petrol station should not be allowed in a residential area.

 

Reason to extend trading is nullified because there are already two service stations that operate 24 hours close to the site, namely:

 

·         a Caltex at 235 - 245 Burns Bay Road where this road intersects with Penrose Street; and

·         a BP at the intersection of Epping Road and Centennial Avenue.

 

Residents occupying the new units in Lane Cove hardly require this service: a Caltex centre is close by, a Shell opposite to that, a BP along Centennial Avenue and there are service stations at Northwood, one of which has a café.

 

Whilst understand the competitive nature of this industry, and the impact of the new Caltex close by, the position of this service station does not warrant this extension; it would have a detrimental impact on surrounding residences, and is the only business in this area; the noise and traffic it would generate will have a negative impact on nearby residents.

 

As the Caltex site close by is surrounded by businesses it can operate for longer.

 

Local residents comprise a mix of young families, busy professionals and the elderly; unnecessary to have a 24 hour operation - not required in this neighbourhood.

If a family, or the elderly, require something urgently they are likely to need a chemist or a doctor, so who would use this facility? Would not use its facilities after 9.30pm for my own safety; only people living elsewhere are likely to use it.

 

The community does not want this proposal to be approved.

Urge Council to act in the interests of residents.

 

Comment

 

Whilst there may be little need or interest from local residents, 7- Eleven as a company has determined that extended trading hours can be justified even though there are two other 24 hour service stations nearby, both of which also operate a convenience store and face a main road.

 

Despite the application indicating that there would be benefits to local residents, it is debatable whether their needs justify the proposed increase in operating hours. Local residents are unlikely to require either fuel and/or convenience goods in the early hours of the morning; it is more likely that these products would be required by people living elsewhere. The business benefit does not justify the potential negative impacts on residents.

 

Whilst there is no evidence that the extended trading hours would reduce property values, it is possible that this could reduce the number of potential purchasers of nearby residential properties. 

However, whilst the location of the nearby ambulance station may have deterred some potential purchasers of residential property close to it, this facility has not deterred current property owners.

 

The nearby Caltex service station and convenience store on Burns Bay Road is not surrounded by businesses: in contrast with the subject site, it only has a commercial use along one boundary, and a retail use along another. However, the residential component in this area has recently increased after the opening of a boarding house that was approved by the Land and Environment Court (NSW) in July 2014, as a result of the conversion of a former office building that also adjoins the site. This use began operating prior to this Caltex facility opening towards the end of 2016. Also, there are dwelling houses opposite this site on its other two sides. Further, this site had previously been approved by Council to enable 24 hour trading on two separate occasions.

 

Residential development adjoins both of the BP service station and convenience stores that operate 24 hours, seven days a week, i.e. at the intersections of Centennial Avenue and Epping Road, and the Pacific Highway and Burley Street. However, Council’s Manager Environmental Health has confirmed Council has not received complaints in relation to either site in recent years. 

 

The subject site is in a different locality because it has residential properties surrounding it, albeit that most are dwelling houses located on the other side of a four lane road, or on the opposite side of Burns Bay Road.  

 

Despite some residents urging Council to act in their interests and not allow an increase in the current operating hours, the main argument is whether it is reasonable to allow the use to operate 24 hours because it is in a residential area. Whilst the legislation provides the operator with this opportunity, the relevant objectives under the LEP for the R3 Medium Density Residential zone that applies not only to this site, but also to some of the surrounding residences, and the R2 Low Density Residential zone that applies to the south of the site, would not be satisfied because:

 

·         it would not maximise, or improve, the amenity of surrounding residences; and

·         generally, the day to day needs of residents are not reflected in the fuel and convenience items that are sold from the premises.

 

4. Interests

 

Council has a responsibility to look after the interests of its community above the interests of large businesses and franchisors.

Increased trading hours would be for the near - exclusive benefit of this company and not local residents.

Big business should not be put ahead of the comfort of residents.

 

Not correct that the business interests and earning capacity of a single business should be of greater importance than the asset value of many rate-paying citizens.

 

This proposal is not in the best interests of the community or local residents.

 

The needs of the people who live in an area should always be the dominant consideration in the decision - this proposal seems to be against our needs.

 

Want the area to continue to have a good name.

 

Comment

 

An applicant is entitled to expect their own interests, whether these are determined at a corporate level or below, to be assessed equally against those interests of local residents.

 

It could be argued that the encouragement of businesses would result in an area having a good name. By contrast, if businesses decline an area’s reputation could diminish. The important issue in this proposal is balancing the potential conflicting needs of the applicant with those of local residents.

 

However, the potential adverse impact on residences surrounding the site should take precedence over the applicant’s interests because the two residential zonings that apply to this area both prohibit a service station. The relevant objectives of both the R3 and R2 residential zones as these relate to surrounding residences would not be satisfied.

 

5. Acoustic report

 

Measurements were taken in winter when we believe there is less activity.

 

Comment

 

            Council’s Manager Environmental Health (MEH) confirms that seasonal variations would not affect the results of the acoustic report.

 

            i)  Does not address:

 

·         two of the loudest noises: returning a fuel nozzle to its holder and closing car doors, or

·         the offensive of the noise source as prescribed under the NSW Environment Protection Authority’s Noise Guide for Local Government, or

·         the PA system used by staff to communicate with customers which is likely to increase for security reasons, but is not addressed in the applicant’s Plan of Management.

 

Fuel levels are general checked at about 10.30pm, or later, every night - the noise from the removal and replacement of these covers is clearly audible within our bedrooms (on the opposite side of Burns Bay Road); the acoustic report confirms that this activity exceeds the sleep disturbance criteria of the existing approval (to 12 midnight) and contradicts s.4 (Amenity) of the Plan of Management.

 

States that based on the estimate of the number of customers per hour during the night, no mitigation measures would be required in relation to fuel pumps; this assumes normal behaviour.  However this is unlikely because new customers are likely to be returning from social events, and if they were under the influence of alcohol they would be likely to act in a noisy manner. This would contradict the assumption made under s.4.3.1 of the applicant’s Statement of Environmental Effects that the extended hours would have minimal environmental impact.

 

Comment

 

Council’s MEH confirms that:

 

·         the noise created by a car audio system, or a car accelerating, or a PA system would be louder than that caused by returning a fuel nozzle or shutting a car door; and

·         Council has not received any complaints about any of Lane Cove’s three 24 hour service stations in the past six years, or any complaints relating to the subject site.

 

Nevertheless, anti - social behavior could increase as a result of the proposed extended trading hours because some new customers are more likely to be intoxicated, or simply in high spirits.       

 

(ii)  Sound attenuation

 

Based on the way of calculating the sound pressure level (SPL) from the return of a fuel nozzle and a car door closing, the noise level would be 56dB(A) and 51dB(A) at our front bedroom window (on the opposite side of Burns Bay Road); the predicted noise level of both noise sources alone is 57dB(A). However, based on the findings of table  4 -1 of the acoustic report this would be higher than the level of intrusive noise between 12 midnight and 6am and at, or above, the sleep disturbance level between 3am and 6am. 

 

Comment 

 

Council’s MEH states that whilst the assessment by the author is correct, the impact would be minimal in the context and type of noise, duration and tone.

 

(iii)  Security

 

A report (by The Australian Institute of Criminology) into service station security, states that armed robberies typically occur between 6pm and 6 am, whilst another report has found that almost 30% of this type of robbery occurs between 12 midnight and 3 am.

 

Whereas the applicant’s Plan of Management only addresses the susceptible of the site because of the cash that is held on the premises, and focuses on deterring robberies etc., the site is more likely to be a target (for this offence) because it would only be operated by one staff member.

 

Comment

 

The above report has not been cited.

 

The applicant’s Plan of Management addresses the procedures 7 - Eleven staff are required to adopt in such an event, for example by activating an alarm system to alert a 24 hour security service.

 

Whilst from a business perspective it would appear that the extended hours could operate with one staff member, this would not necessarily deter someone from targeting the premises in order to commit a robbery.

 

(iv)  Public interest

 

Contrary to what is stated, the proposal would not enhance competition for fuel and convenience goods because none of the existing 24 hour service stations close to the site reduce their price during the night, and therefore there would be no additional benefit.   

 

Comment

 

It is unlikely that the applicant’s suggestion that the proposal would enhance competition literally meant that this would only occur during the night. It is more likely the applicant is suggesting that generally the extended trading hours could generate competition on a general basis between local 24 hour service stations.  

 

6. Notification

 

Period excludes a response by those residents who were away and others that were not notified; those who work have had insufficient time to assess the proposal; an extension is required.

Comment

 

The notification period from 25 November and lasting for 14 days is in line with Council’s practice for that time of year. Closer to, and during, school holidays, it is Council’s practice to extend the notification period for up to 28 days.

 

7. Intensity 

 

Have lived with increased traffic, vehicle noise, bad odours, poor language and several robberies and ram - raids due to this facility; accept that 7-Eleven occupies the site and that it operates longer hours with larger signage and more lighting (that are awful and incredibly bright) and operates beyond the hours most people are awake.

 

Seems the business pushes for more and more; the original little corner service station run by the existing owners, has developed into a large convenience store, offering take - away foods, beverages and snacks, and has increased the number of petrol pumps. 

 

Use has intensified since Council granted it existing use rights; hope to see the original agreement so our rights as residents are respected by business and by the Council.

 

Comment

 

In front of the convenience store’s glass frontage there are steel poles that may deter ram raiders.

 

As stated earlier in this report, the current use operates beyond the hours of 6.00am to 11.00pm daily that were imposed by Council in 1994 under DA 115/93. However, Council’s Manager Environmental Health has confirmed that the current use has operated without complaints being made to Council in recent years.

 

Apart from this anomaly, the current use would appear to be operating in compliance with previous Council approvals.

 

SECTION 79C(1)(e) THE PUBLIC INTEREST

 

The applicant states that apart from providing enhanced competition for fuel and convenience goods… the proposal is in the public interest because it provides …. fuel and convenience goods such as beverages and food …when other shops … are closed and many in the local community are on their way to work.

 

As previously addressed in this report, local residents on their way to work are less likely to buy food or beverages when they have just left home. As it is far more likely that the proposed trading hours might cater for workers who do not live locally, the proposal would only be in the wider public interest, not the local public interest. However, it is only local residents who would be adversely affected by the proposal serving the wider public interest.     

 

CONCLUSION

 

A service station has existed on the site for a number of years and provides retailing of general merchandise. The premises have development consent to operate between the hours of 6.00am and 11.00pm, seven days a week.

 

The application proposes to increase the current operating hours of the existing service station and convenience store so that it can operate 24 hours a day, seven days a week. Although the proposal is permissible under legislation relating to existing use rights, the site is in a residential zone and is surrounded by residential properties.   

 

A number of local residents have raised concerns regarding the potential adverse impacts associated with extended trading hours. Some of these concerns highlight current work practices, and an acoustic report submitted with the development application identifies a number of noise impacts from the current operations and provides recommendations to address these. The same report also makes recommendations for the amelioration and attenuation of noise that could be generated by the proposed extension to the current operating hours.

 

Despite the recommendations of the applicant’s acoustic report some residents are anxious about the effects of the current use operating 24 hours a day, seven days week.

 

The subject site has operated as a non-conforming use with existing use rights in this residential precinct for many years.  Notwithstanding the use does provide goods and services that meet the day to day needs of this residential precinct such comes at the cost of increased noise and risks associated with a fuel dispensing services station.

 

The proposal to increase the operating hours after 12 midnight would further erode the existing residential amenity of this residential precinct while catering to the convenience needs of predominantly passing traffic on Burns Bay Road.

 

Other service stations/convenience centres located along Burns Bay Road, are purpose zoned and built to cater for the late night needs of passing traffic.

 

As the use is within a residential zone its operations would affect neighbouring residents. As it is reasonable to protect the amenity of residents the proposal should not be supported. 

 

Notwithstanding this conclusion, given that the service station currently operates between the hours of 6.00 a.m. to 12 midnight, seven days a week, these operating hours are recommended to be endorsed.   

 

RECOMMENDATION

 

Part A

 

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 205/16 for an increase in operating hours of the 7- Eleven service station and convenience store on Lot 1 DP 126742 and known as 203 Burns Bay Road, Lane Cove for the following reasons:

 

1.    The use has the potential to adversely impact upon the amenity of local residents.

 

2.    The use is contrary to the public interest because it has the potential to have an adverse impact             on local residents.  

 

Part B

 

That the current operating hours of 6.00 a.m. to 12 midnight, seven days a week, are endorsed.

 

 

 

 

 

 

Michael Mason

Executive Manager

Environmental Services Division

 

 

ATTACHMENTS:

AT‑1View

Site Location Plan

1 Page

 

AT‑2View

Neighbour Notification Plan

2 Pages

 

 

 


 

Independent Hearing and Assessment Panel Meeting 7 March 2017

2 Wharf Road, Longueville

 

 

Subject:          2 Wharf Road, Longueville     

Record No:    DA16/186-01 - 8678/17

Division:         Environmental Services Division

Author(s):      Michael Stephens 

 

 

APPLICATION INFORMATION

 

Property:

2 Wharf Road, Longueville

DA No:

DA16/186

Date Lodged:

17/10/16

Cost of Work:

$340,000

Owner:

M V and S M Samant

Applicant:        

J Cochrane

 

Description of the proposal to appear on determination

Rear and first floor additions, internal alterations, vergola and two vehicle carport.

Zone

R2 Low Density Residential

Is the proposal permissible within the zone

Yes

Is the property a heritage item

No – Located Adjacent to Heritage Item I272

Is the property within a conservation area

No

Is the property adjacent to bushland

No

BCA Classification

Class 1a and 10b

Stop the Clock used

Yes

Notification – Corrected plans were re-notified on 4 November 2016

Neighbours                             6, 7, 9, 8-10, 11, 12, 13,14, 16 Wharf Road, 44, 46. 48, 50 67, 69, 71 Mary Street and 1 Cross Road

Ward Councillors                   Central Ward

Progress Association             Longueville Residents Association

 

EXECUTIVE SUMMARY

 

The development application was lodged with Council seeking consent for the alteration and additions to a dwelling house located at 2 Wharf Road, Longueville. The proposed works include rear and first floor additions, internal alterations, a vergola and a carport for two vehicles.

 

The subject site is located in a foreshore area overlooking the Lane Cove River and surrounded by other one and two storey dwellings, one of which is listed as a heritage item. The existing dwelling on the site is single storey with a lower ground floor garage.

 

The proposed development complies with the Lane Cove Local Environment Plan 2009 principle development standards including land use zoning, height of buildings, and floor space ratio. It is generally in accordance with the Development Control Plan provisions although seeks variation to elements of building design.

 

Internal referrals raised no objections to the proposed development.

 

The proposal was notified to neighboring properties and as a result 3 submissions were received. The main concern raised pertained to a loss of water views from the adjoining property of 48 Mary Street, Longueville. Height poles have been erected in order to conclusively assess the impact of the vergola structure.

 

In order to facilitate view sharing appropriate conditions have been included in the recommendations of this report to delete the offending building elements including a proposed vergola structure in its entirety.

 

REASON FOR REFERRAL

 

The development application is referred to the Lane Cove Independent Hearing and Assessment Panel for consideration and determination given the view sharing issue raised and the potential to a loss of view.

 

SITE

 

Property

Lots B and C in DP102379

Area

740m2

Site location

Eastern Side of Wharf Road between Mary Street and Cross Road. The site overlooks the Lane Cove River.

Existing improvements

Single storey rendered brick dwelling with a tiled roof and a lower ground floor garage.

Shape

Rectangular

Dimensions

Width -18.2m, Depth – 40.2m                          

Adjoining properties

North East – Rear of 48 and 50 Mary Street, both dwellings are two storey brick dwellings. No. 48 has a swimming pool located along side the shared boundary with the subject property.

South East – The rear property of a battle axe subdivision with the subject property. The dwelling is two storey’s with a flat sheet metal roof and a swimming pool located near the shared boundary with the subject property.

North West – Wharf Road then a two storey rendered brick dwelling with a tiled roof. 

South West - Single Storey Federation residence with a slate roof. LEP Heritage item (I272)

 

SITE DISCRIPTION

 

The site is located on the Longueville Peninsular and overlooks the Lane Cove River. The lot is orientated to the north west and is the front lot in a battle axe type subdivision with the handle running along the south western boundary. The site falls from the north eastern boundary to the south western boundary by approximately 3.5m. There is little variance from front to rear. The existing dwelling is single storey with a part 2 storey element where the land falls away that accommodated a lower ground floor garage. Within the rear setback there are areas of exposed rocky outcrops, most notably within the eastern corner.

 

There is an existing driveway and vehicle crossing to Wharf Road. There are two significant mature trees within the front setback. The front fence is low and constructed of sandstone. 

 

The adjacent dwelling “Woodberry” at 8-10 Wharf Road is listed as Heritage Item 272 and is described as an important surviving harbourside residence from the Federation Era, substantially intact and retaining a complementary proportion of its original grounds with garden elements.  

 

PREVIOUS APPROVALS/HISTORY

 

·         DA08/27 - Demolish Dwelling, remove 6 trees and construct a new two storey dwelling.

 

The application was approved under delegated authority on the 23 April 2004. The consent was never enacted and has since lapsed. 

 

PROPOSAL

 

·         Rear additions and internal reconfiguration of the ground floor resulting in an increased floorspace of 32m2.

·         First floor addition containing 3 bedrooms, two bathrooms and a balcony at the rear. The balcony is 1.5m in depth.

·         Conversion of existing lower ground floor garage to storage space.

·         New double car carport within the front setback and driveway that tapers from the existing vehicle crossing to the new carport.

·         Rear patio entertaining area with a vergola. 

·         Paving and landscaping associated with the development.

 

 

PROPOSAL DATA/POLICY COMPLIANCE

 

Local Environmental Plan 2009

 

Zoning:           R2 Low Density                                 Site Area: 740m²

 

 

Proposed

Control

Complies

Floor Space Ratio

0.42:1

0.5:1

Yes

Height of Buildings

9m

9.5m

Yes

 

FSR Calculation:

                Ground Floor = 176.4m2

            First Floor = 105.93m2

            Lower Ground Floor = 33.4m2

FSR = (Total Floorspace 315.75m2 / Site area 740m2) :1

FSR= 0.42:1

 

Comprehensive DCP

 

Part C.1 - Residential Development, Dwelling Houses and Dual Occupancies

 

 

Proposed

Control

Complies

Front setback (min)

15.5m- generally unchanged

Consistent with area or 7.5m

Yes

Side setback (min)

Ground Floor – Unchanged

First Floor – 4.250m and 3.8m

1200mm single storey

1500mm two storey

Unchanged

Yes

Rear setback (min)

9.57m to rear wall of the dwelling.

 

Three blade walls 0.75m in depth would encroach the rear setback.

<1000m²: 8m or 25% =

 

10.07m

 

No – However supported provided unreasonable elements are deleted.

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

7.5m (south western elevation) for a small portion towards the rear of the dwelling where it is setback 3.8m from the boundary.

7.0m

No – However supported

Maximum Ridge height

9.0m

9.5m

Yes

Subfloor height (max)

2.26m – The non compliance presents at the eastern corner of the dwelling under the rear additions where the topography of the site falls away steeply.

 

The majority of the dwelling is over existing subfloor.

1.0m

 

 

 

 

No - However supported

 

 

 

 

Unchanged

Number of Storeys (max)

Partial 3 Storey element over existing garage.

2 Storeys

No - However supported

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

48% - (357.65m2)

35%

Yes

Cut and Fill (max)

Less than 1m Cut or Fill is required.

1m

Yes

Solar Access

Achieved to subject site and adjoining properties.

 

The property to the rear (6 Wharf Road) will receive additional overshadowing some time after 12pm lasting through the afternoon.

 

The property to the south east (8-10 Wharf Road – (Heritage Item) whilst already partially overshadowed in the morning hours will receive some additional overshadowing at that time.

3 hrs to a portion of windows of habitable rooms and reasonable access to recreation areas between 9am and 3pm on 21st June for the subject site and neighbouring dwellings

Yes

Deck/Balcony depth (max)

1.5m (First Floor Balcony)

3m

Yes

Private open space

Provided within the rear setback.

24 m² (min)

4m minimum depth

Yes

Basix

Certificate No. A259100

Required

Yes

 

Car Parking

 

 

Proposed

Control

Complies

Off-street spaces (min)

2

2

Yes

Driveway width

3m

3m at the lot boundary

Yes

 

Carports within the Front Setback & Garages Facing the Street

 

 

Proposed

Control

Complies

Setback of Carport Posts (min)

7m

1m from street boundary

Yes

% of Allotment Width (garages & carports)

6m

50% of lot width or 6m, whichever is the lesser

Yes

 

Fences

 

 

Proposed

Control

Complies

Front fence height (max)

Unchanged – Some Modification is required to accommodate the upgraded vehicle crossing.

Solid:   900mm

Lightweight:     1.2m

Unchanged

Side and rear fences

Unchanged

1.8m

Unchanged

 

Outbuildings

 

 

Proposed

Code

Complies

Overall Height (m) (max)

4.6m

3.6m

No - However supported

External wall height (max)

N/A - open design

2.4m

Yes

Maximum floor space

36m2

50 m²

Yes

No of Storeys

1

1

Yes

 

Part B.4 - General Controls, View Sharing

 

As a result of notification of the proposed development to the adjoining neighbours a submission was received that stated that the design of the proposed dwelling, in particular the vergola structure would result in a loss of views that are currently enjoyed. Following a site inspection of the subject property and a visit to the objector’s property it was established the concern raise was valid.

 

In response Council requested that height poles be erected that would indicate the built form that the proposed rear setback, balcony and vergola would take.  Height Pole location and Survey Report attached (AT3). An assessment has been made following further inspection of the site and adjoining property under the provisions of the Lane Cove Development Control Plan 2010 Part B.4 and using the Land and Environment Courts Planning Principle for Views  - General as established in Tenacity Consulting vs Waringah [2004] NSWLEC 140. 

 

Objectives

 

The objectives for view sharing are:

 

a)    To ensure that public view corridors between buildings or along streets are retained and enhanced from streets or public spaces.

 

Town Planner’s comment:

 

The proposed development would not affect any public view corridors.

 

b)    To minimise the impact of new development on existing public and private views and vistas.

 

Town Planner’s comment:

 

The proposed development would have view impacts on a private view from a property to the north-east.

 

c)    To preserve or fairly share water views for foreshore residents.

 

Town Planner’s comment:

 

The proposed development is located within a foreshore area. The vergola structure would result in a loss of views from the adjoining property that is contradictory with the provisions of view sharing.

 

Provisions

 

a)    Where existing views from public spaces are through the gaps between side setbacks of buildings, the length of the building and roof of any proposal should be oriented towards the view in order to minimise view obstruction.

 

Town Planner’s comment:

 

This provision is not applicable to the proposed development as it would not affect views from the public domain.

 

b)    Existing or potential view corridors to the water from the street are to be protected as public view corridors by ensuring that fencing to the front boundary is open in character.

 

Town Planner’s comment:

 

This provision does not apply to the application as the proposed development would not affect water views from any street.

 

c)    Garages and outbuildings are not to be located within the view corridor and the required side setback is to be clear of all built form obstructions. Lightweight carport structures may be considered in side setbacks.

 

Town Planner’s comment:

 

This provision is not applicable to the proposed development as the offending elements of the proposed development are not garages or outbuildings.

 

d)    Buildings on steeply sloping sites should adjust the height of the building envelope to follow the natural topography of the site

 

Town Planner’s comment:

 

The site does slope from the north-eastern boundary to the south-western boundary although the offending elements of the dwellings design do relate closely to the natural topography of the site.

 

e)    To facilitate view sharing for residential developments, flat roofs or low mono-pitched roofs can be used where the design of the building and roof is integrated architecturally and where its appearance would be appropriate given the character of the street.

 

Town Planner’s comment:

 

This provision is not applicable to the proposed development as the offending elements of the proposed development do not include the roof of the dwelling as proposed.

 

f)     Applicants may not be able to achieve the maximum permissible height in order to cater and facilitate view sharing. In such cases, concessions shall be given for side and rear setbacks subject to meeting the requirements for privacy, amenity and solar access to the adjoining neighbours.

 

Town Planner’s comment:

 

This provision is not applicable to the proposed development as the loss of views is not related to the height of the dwelling.

 

g)    Views from commercial development will not carry the same weight as views from dwellings.

 

Town Planner’s comment:

 

The proposed development is located within a low density residential area and does not relate to any views from any commercial development.

 

h)    Development is not to unreasonably affect existing water views from the living areas of adjoining dwellings.  Views from bedrooms are not considered to have the same significance unless they are the only available views within the dwelling.

 

Town Planner’s comment:

 

The proposed development would have an unreasonable impact on the existing water views gained from the living area of the adjoining dwelling (48 Mary Street, Longueville). There are additional views from the bedrooms located on the first floor of 48 Mary Street.

 

i)      In such cases the maintenance of the view will be tested against its reasonableness i.e. how the view is obtained and where the view is gained. For instance views that are gained by leaning out a side boundary window and looking obliquely across a number of lots will not be given weight against a view from the main living area window.

 

Town Planner’s comment:

 

The views gained from 48 Mary Street are reasonable to maintain. The views are gained from the dwellings principal living area, kitchen and outdoor entertaining area. The views are gained over the rear boundary of 48 Mary Street across the rear setback of the subject property. The objectives for setbacks include providing for views for the dwelling and its neighbours.

 

j)      Views will also be tested against the extent of view available. Where appropriate the views will also be tested against the view sharing principles stated by the Land and Environment Court

 

Town Planner’s comment:

 

The view sharing planning principle of the Land and Environment Court has been taken into consideration during the assessment.

 

To decide whether or not view sharing is reasonable, a four-step assessment has been carried out.

 

The first step is the assessment of views to be affected. 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.

 

Town Planner’s assessment:

 

The views currently enjoyed by 48 Mary Street are considered to be highly valued as they are water views of the Lane Cove River and include the land water interface of Hunters Hill. Furthermore the view of the Church of St Peter Channel can be described as iconic.

 

The second step is to consider from what part of the property the views are obtained. For example the protection of views across side boundaries is more difficult than the protection of views from front and rear boundaries. In addition, whether the view is enjoyed from a standing or sitting position may also be relevant. Sitting views are more difficult to protect than standing views. The expectation to retain side views and sitting views is often unrealistic.

 

Town Planner’s assessment:

 

The views are gained by looking over the rear boundary of 48 Mary Street which due to the subdivision pattern is the side boundary of the subject property. Although the alignment of the respective lots means that the view is gained across the rear setback of the subject site. The views are best gained from a standing position. 

 

The third step is to assess 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. For example, it is unhelpful to say that the view loss is 20% if it includes one of the sails of the Opera House. It is usually more useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating.

 

Town Planner’s assessment:

 

The views that would be impacted are gained from the principal living area, kitchen and outdoor entertaining area. These views are regarded as more highly valued than the views enjoyed from the bedrooms, located on the first floor, which would remain uninterrupted regardless. The proposed vergola would result in a severe loss of views as it extends across the majority of the view corridor and is elevated so as a view cannot be gained over the top to the water or land water interface. The impact to the iconic view of the Church of St Peters Channel is minor.

 

The fourth step is to assess 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. With a complying proposal, the question should be asked whether a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on the views of neighbours. If the answer to that question is no, then the view impact of a complying development would probably be considered acceptable and the view sharing reasonable.

 

Town Planner’s assessment:

 

The offending elements of the proposed dwelling are unreasonable to retain. The views are gained through the view corridor that is clearly established by the DCP provision for the rear setback of the subject site.

 

The additions to the rear of the dwelling and in turn the first floor addition encroaches the rear setback by 500mm. The rear setback is defined as 25% of the lot depth which is calculated to be 10.07m. The rear setback for the proposed development has been established in line with the existing dining room although the encroachment on the north-western side of the dwelling would be an increase in the buildings footprint. Whilst the variation to the rear setback control would be acceptable as it is minor any further building elements that encroach the setback would need to be assessed with consideration to view sharing.

 

The parapet wall that surrounds the vergola is considered unreasonable as it provides no functional or architectural benefit to the subject property whilst resulting in a loss of amenity to the adjoining properties. It is therefore recommended that the parapet walls are to be deleted where any consent is to be given. 

 

The views to the water are naturally gained at a downwards angle as the subject site and 48 Mary Street are located on the south-western slope of the Longueville peninsula. Whilst open structures can at times provide for views to be partially maintained, the oblique angle the view is gained at would result in the roof plane of the vergola having serve impact on the views. It is therefore recommended to be deleted where any consent is to be given. 

 

The line of sight to the main portion of the view is at a slight angle across the subject site therefore the first floor balcony would be located behind the furthest point the dwelling would extend to the rear as viewed from 48 Mary Street. The location of the first floor balcony does not raise an issue as to view sharing. 

 

The blades walls are an encroachment into the rear setback. The northern most blade wall would result in a partial loss of the view enjoyed by 48 Mary Street and is therefore recommended to be deleted.

 

It is considered that the proposed development in its current form does not meet the view sharing objectives of the DCP and the Land and Environment Court view sharing planning principle. Draft Conditions 2 would require the deletion of the offending elements of the proposed development therefore providing for view sharing with the adjoining property of 48 Mary Street.

 

REFERRALS

 

Development Engineer

 

The proposal was referred to Council’s Development Engineer who reported on 10 November 2016 that no OSD is required as the increase in impervious surfaces in minimal. All new impervious surfaces are conditioned to drain into the existing stormwater system. The new driveway on Council property has been conditioned.

 

As a result of their assessment 14 Draft Conditions have been included in the recommendations of this report.

 

Heritage Advisor (External)

 

The proposal was referred to Council’s Heritage Advisor who reported that there was no objection to the proposed alterations and additions. The subject property is not listed as a heritage item, however it is located adjacent to a listed heritage item at 8-10 Wharf Road. The heritage item is a large single storey Federation residence in brick with slate roof. It is set in large grounds, now subdivided, originally with a water frontage.

 

The heritage building is separated from the subject site by a wide open space with a battleaxe driveway to the side boundary, which provides adequate curtilage to maintain the significance of the heritage item.

 

The proposed extension is stepped back approximately 3.5 metres from the side and front eaves of the existing roof which minimises the height and massing of the new work. The hipped roof is sympathetic with the roof forms of the heritage building. The carport is located at a low area of the site, and is an open structure with sympathetic tiled roof.  

 

The proposed extension and new carport will have minimal impact on the heritage item. The increased bulk of the extended building is appropriate for the large allotment size and the carport is recessive to the existing house. Furthermore, the open space between the buildings and driveway minimise any potential impacts on the heritage item. 

 

As a result of their assessment no Draft Conditions were recommended.

 

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

 

The proposal is permissible, complies with the development standards for Floor Space Ratio and height and does not raise any issues in regard to the Lane Cove Local Environmental Plan 2009.

 

Effect of Proposed Development on Heritage Significance

 

As 8-10 Wharf Road, Longueville is listed as a Local Heritage item (I272), under subclause 4 of clause 5.10 an assessment is required to be made of the effect the proposal may have on the value of the heritage item. The application was referred to Councils Heritage Advisor.

 

Other Planning Instruments

 

SREP (Sydney Harbour Catchment) 2005

The subject site is within the Foreshores and Waterways area specified in SREP (Sydney Harbour Catchment) 2005. Part 2 of the SREP sets out planning principles for land within the Sydney harbor catchment and part 3 of the SREP sets out matters for consideration.

 

The development does not raise concern regarding the landscape character of the Greenwich Point Area (Type 9) as viewed from the Harbour. The development is in keeping with the existing dwelling and surrounding low density residential area.

 

SEPP 55 Remediation of Land

 

The subject site and adjoining sites are zoned for residential purposes. Given the types of uses permissible within the residential zones, it is unlikely that the site would be contaminated.

 

APPLICABLE REGULATIONS

 

The Environmental Planning and Assessment Regulation 2000 indicates that the standards for demolition and removal of materials should meet with AS 2601-2001 and therefore any consent would require the application of a relevant condition seeking compliance with the Standard.

 

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.

 

Control

Proposed

Comment

Council support

DCP Pt C 1.3.4 Rear Setback. 8m or 25%

 

25% = 10.07m

 

 

 

9.56m

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Three blade walls 0.75m in depth would encroach the rear setback.

The existing dwelling is located further towards the rear of the site as the front setback is far greater than what is typically seen in the locality as it has been established generally in line with the heritage item located on the adjacent lot. The rear wall of the dwelling encroaches the control by 500mm. The variation is considered acceptable as this portion of the building is not the offending element in the loss of views from the adjoining property, 48 Mary Street. The northeast corner of the proposed dwelling would give the perception of framing the water views without impacting upon them.

 

Other aspects of site planning have also been considered. Variation to the rear setback would not raise concern to the provision of soft landscaping (48% provided) including mature trees. 

 

The DCP makes provision for decks within the rear setback. In supporting the first floor balcony the amenity of the adjoining properties has been considered in terms of both privacy and views.  This assessment was made with consideration to submissions received.

 

The blade walls are an architectural element and would generally be acceptable. Although the northern most blade wall would result in a partial loss of the view enjoyed by 48 Mary Street. The remaining two blade walls support the first floor balcony. As discussed the balcony would not encroach the views and therefore those blade walls would be acceptable.

 

Yes

 

 

 

 

 

 

 

Yes

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Draft Condition 3 would facilitate view sharing and therefore the development would be supportable in this regard.

DCP Pt C 1.7.1 Height a) - 7.0m (max) External Wall Height

7.5m along eastern elevation. 

 

Due to the fall of the land and the siting of the existing dwelling on the lots the first floor addition would result in a 7.5m wall height along the eastern elevation. In regards to the objectives of building design the proposed development would not impose unreasonable bulk and massing on the adjoining property that would impact their amenity. There is significant building separation between the subject property and 8-10 Wharf Road due to the access handle of 6 Wharf Road being located between them.

  

Yes

DCP Pt C 1.7.1 b)  Subfloor = 1.0m

2.26m

 

The minor additions to the rear in the southern corner of the dwelling would result in a small increase in the subfloor area that is already quite significant in height. This is due to the rapid fall of the land toward the South Western boundary. The resulting impact to the building height and external wall height has been considered as a part of this assessment.

 

Yes

DCP Pt C 1.7.1 e) No. of Storey = 2

Partial 3rd Storey

 

There is a small proportion of the first floor addition that is located over the existing lower ground floor garage. Once again this is a result of the existing siting of the dwelling and the rapid fall of the land towards the south western boundary. The first floor addition is already stepped back in comparison to the ground floor from the side boundaries. The impact on the adjoining properties (8-10 Wharf Road) has been considered.  A compliant scheme would not provide any additional solar access whilst the appearance of bulk and massing is limited through the building articulation.

 

Yes

DCP Pt B.4 Views Sharing

Vergola and various architectural features within view corridor.

The impact of the development on views has been addressed above. The assessment was made considering the provisions of the DCP and the four step assessment outlined by the LEC Principles regarding views. It is recommended that appropriate conditions are imposed on any consent in order to facilitate view sharing.

Draft Conditions 2 and 3 would facilitate view sharing and therefore the development would be supportable in this regard.

DCP Pt C 1.10.3

Outbuilding Height – 3.6m

4.4m

 

The pitched carport roof exceeds the maximum building height of 3.6m for outbuildings. The carport provides parking for the residents, with a structure that is designed in conjunction with the dwelling without compromising the amenity of adjoining properties. Overshadowing to 8-10 Wharf Road occurs only to an area utilised for parking.

 

Yes

 

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

 

In response to notification of the development application three submissions were received from neighbours at adjoining properties. Their submissions have been generally summarised and comments made by Council’s Assessment Town Planner.

 

·         The proposed dwelling is not sufficiently setback from the rear boundary to meet the control of 25% of the site depth.

 

Town Planner’s Comment

 

The siting of the existing dwelling is significantly setback from the street in line with the front setback of the Heritage Item located on the adjoining property at 8-10 Wharf Road. As a result the additions have encroached upon the rear setback control of 10.07m (25% of the site depth). The rear wall of the dwelling encroaches into this setback by approximately 500mm and is considered as an acceptable non-compliance.  As discussed the DCP makes provision for decks within the rear setback and therefore the vergola and first floor balcony may be acceptable encroachments, although are subject to meeting the objectives for setbacks and other provisions of the DCP. This has been assessed under the provisions for view sharing (addressed above - Part B.4 View Sharing) and based upon potential overlooking (addressed directly below).

 

·         Overlooking from the first floor balcony to swimming pools, private open space and bedroom windows of adjoining properties.

 

Town Planner’s Comment

 

The balcony located on the first floor is accessed from the master bedroom. The depth of the balcony is also limited to 1.5m. For these reasons it is anticipated that the balcony would be of low use. The balcony is located at least 9m from the swimming pools and private open space of the adjoining properties (6 Wharf Road and 48 Mary Street) which the AMCORD principals states is sufficient to gain visual privacy via separation. 

 

The bedroom windows of 6 Wharf Road are located approximately 1-1.5m from the rear boundary of the subject property and can already be viewed from ground level. Whilst it is noted that an elevated balcony would result in a greater visual intrusion due to overlooking, the building separation previously stated would be sufficient to maintain visual privacy.

 

The bedroom windows of concern at 46 Mary Street are at a significantly higher RL than the proposed balcony and therefore would not be overlooked. 

 

The balcony would not create undue impacts to the visual or acoustic privacy of the adjoining properties.

 

·         The design of the loggia seems to indicate that it is to be used as a trafficable roof or first floor deck.

 

Town Planner’s Comment

 

The area above the proposed vergola would not be acceptable as a trafficable roof or deck and therefore an appropriate draft condition would be imposed on the proposed development. The 1m high parapet wall also reinforces the potential for this space to be easily converted into a trafficable roof in the future. An appropriate draft condition would be recommended on any consent given that would state that the vergola is not to be converted to or used as a trafficable roof. Although in order to satisfy the requirements for view sharing the vergola is recommended to be deleted and thus this issue is nullified.

 

·         Loss of views to the water due to non-compliant rear setback and vergola structure.

 

Town Planner’s Comment

 

In order to assess the impact of the proposed development on the views enjoyed by 48 Mary Street, Longueville, an assessment was made from the objector’s property. From inspection the concern appeared valid and Council requested height poles to be erected so that a more comprehensive assessment could be made. This assessment is discussed under the sub-heading DCP Part B.4 - General Controls, View Sharing. As a result it was established that the vergola structure would constitute severe view loss and therefore would be recommended to be deleted where any consent is to be given.

 

The rear setback has been discussed previously although regarding view loss there would be no benefit to the objectors view if the proposed development was strictly compliant with the rear setback control of 10.07m.

.

·         Sufficient measures to catch runoff that will flow into adjoining properties have not been provided.

 

Town Planner’s Comment

 

The development has been assessed by Councils Development Engineer who has provided conditions to ensure that all new impervious surfaces are to drain into the existing stormwater system. 

 

IMPACTS OF THE DEVELOPMENT (Section 79C (1)(b) EPA&A ACT 1979)

 

The proposed development with consideration to the draft conditions recommended would provide for the growing needs of the owners whilst having a limited, although acceptable impact upon adjoining properties. The original siting of the dwelling has created a constraint to the development. The minor encroachment into the rear setback is considered acceptable although the vergola structure had not taken into consideration the impact upon views to the Lane Cove River and Hunters Hill. Deleting the offending elements of the proposed development would maintain the view corridor over the rear of the site.

 

The dwelling does evoke some perception of bulk and massing towards the southwest, an issue that has arisen as a result of the siting of the existing dwelling and the topography of the site. The first floor addition is stepped back away from the boundary creating notable building articulation and reducing the overall building envelope. As the access handle of the rear property is located alongside this boundary, building separation to the heritage item at 8-10 Wharf Road is also increased, further nullifying the impacts of the dwellings scale.

 

The lot orientation and significant building separation ensures excessive or undue overshadowing to adjoining properties is avoided.

 

On-site covered parking is provided for two vehicles.

 

CONCLUSION

 

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

 

The application meets with the Floor Space Ratio and Height controls as required in the Lane Cove Local Environmental Plan 2009 and generally meets with the Part C Residential Development Objectives in the Lane Cove Development Control Plan.

 

On balance the proposed development would be reasonable and therefore is recommended for approval subject to deletion of the proposed vergola and northern most blade wall.

 

 

RECOMMENDATION

 

Part A

 

That pursuant to section 80(3) of the Environmental Planning and Assessment Act 1979, the Council grants deferred development consent to Development Application DA16/186 for first floor addition, internal alterations, and carport on Lot B and C in DP102379 know as 2 Wharf Road, Longueville subject to the following conditions:

 

The consent will not operate until Council is satisfied the following matters have been addressed.

 

1.    The vergola is to be deleted. The intent of this condition is to facilitate view sharing.

 

2.    The northern most blade wall at the rear of the dwelling is to be deleted. The intent of this condition is to facilitate view sharing.

 

Plans that address points 1 – 2 under Part A above are to be submitted to Council within 12 months of the granting of this deferred commencement consent.  Commencement of the approval cannot commence until Council has confirmed in writing that all matters under Part A above have been provided and are satisfactory.

 

Pursuant to Clause 95(5) of the Regulations under the Act, Council will notify the applicant in writing if Part A of this consent has been satisfied and the date from which this consent operates.

 

Part B

 

Conditions

 

Subject to Part A being satisfied, a development consent and plans be issued subject to the following conditions:

 

1.         (20) That the development be strictly in accordance with the following plans once revised by the requirements of PART A:

 

Drawing

Prepared by

DWG / Plan No.

Rev

Dated

Site Plan

John Cochrane Architect

DA01

A

20-09-16

Ground Floor Demolition Plan

John Cochrane Architect

DA03

A

20-09-16

Lower Ground Floor Plan

John Cochrane Architect

DA04

A

20-09-16

Ground Floor Plan

John Cochrane Architect

DA05

A

20-09-16

First Floor Plan

John Cochrane Architect

DA06

A

20-09-16

SW & NE Elevation

John Cochrane Architect

DA08

B

20-09-16

SE & NW Elevation

John Cochrane Architect

DA07

B

20-09-16

Section 1,2,3

John Cochrane Architect

DA09

A

20-09-16

 

except as amended by the following conditions.

 

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

 

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

 

4.         (11)  The approved plans must be submitted to Sydney Water online approval portal “Sydney          Water Tap In”, please refer to web site www.sydneywater.com.au. This is to determine        whether the development will affect Sydney Water’s sewer and water mains, stormwater      drains and/or easements, and if further requirements need to be met. An approval receipt with      conditions shall be issued by Sydney Water (if determined to be satisfactory) and is to be    submitted to the accredited certifier prior to the issue of a Construction Certificate.

 

5.         (12) Approval is subject to the condition that the builder or person who does the residential             building work complies with the applicable requirements of Part 6 of the Home Building Act             1989 whereby a person must not contract to do any residential building work unless a             contract of insurance that complies with this Act is in force in relation to the proposed work.              It is the responsibility of the builder or person who is to do the work to satisfy Council or the             PCA that they have complied with the applicable requirements of Part 6.  Council as the

PCA will not release the Construction Certificate until evidence of Home Owners             Warranty Insurance or an owner builder permit is submitted. THE ABOVE CONDITION   DOES NOT APPLY TO COMMERCIAL/INDUSTRIAL CONSTRUCTION, OWNER          BUILDER WORKS LESS THAN $5000 OR CONSTRUCTION WORKS LESS THAN $20,000.

 

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

 

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

 

            Monday to Friday (inclusive)              7.00am to 5.30pm

            Saturday                                                         7.00am to 4.00pm

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

 

            A Notice/Sign showing permitted working hours and types of work permitted during those             hours, including the applicant’s phone number, project manager or site foreman, shall be             displayed at the front of the site.

 

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

 

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

 

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

 

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

 

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

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

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

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

 

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

 

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

 

13.       (51) Lane Cove Council regulates the Preservation of Trees and Vegetation in the Lane             Cove local government area. Clause 5.9(3) of Lane Cove Local Environmental Plan 2009             [the "LEP"], states that a person must not ringbark, cut down, top, lop, remove, injure or             wilfully destroy any tree or other vegetation to which any such development control plan             applies without the authority conferred by development consent or a permit granted by the             Council. Removal of trees or vegetation protected by the regulation is an offence against             the Environmental Planning and Assessment Act 1979 (NSW). The maximum penalty that             may be imposed in respect to any such offence is $1,100,000. The co-operation of all             residents is sought in the preservation of trees in the urban environment and protection of             the bushland character of the Municipality. All enquiries concerning the preservation of trees             and vegetation must be made at the Council Chambers, Lane Cove.

 

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

 

a)    The pier holes/pads before filling with concrete.

b)    All reinforcement prior to filling with concrete.

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

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

e)    Installation of steel beams and columns prior to covering.

f)     Waterproofing of wet areas.

g)    Stormwater drainage lines prior to backfilling.

h)    Completion.

 

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

 

a)    underpinning;

b)    retaining walls;

c)    footings;

d)    reinforced concrete work;

e)    structural steelwork;

f)     upper level floor framing;

 

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

 

17.       (63) All metal deck roofs being of a ribbed metal profile or colourbond corrugated galvanised or zincalume iron, in a mid to dark colour range with an anti glare finish.  The         intent of the condition is to reduce sun reflection and glare to protect the amenity of the             surrounding residents.

 

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

 

a)    Dampcourse level;

b)    The establishment of the first floor level;

c)    The roof framing; and

d)    The completion of works

 

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

 

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

 

20.       (72) The demolition works being confined within the boundaries of the site.

 

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

 

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

 

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

 

24.       (130)  Compliance with the Waste Management Plan submitted along with the application.

 

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

 

26.       (141) Long Service Levy  Compliance with Section 109F of the Environmental Planning             and Assessment Act 1979; payment of the Long Service Levy payable under Section 34 of             the Building and Construction Industry Long Service Payments Act 1986 (or, where such a             levy is payable by instalments, the first instalment of the levy) – All building works in excess             of $25,000 are subject to the payment of a Long Service Levy at the rate of 0.35%.

 

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

 

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

 

General Engineering Conditions

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

36.       (V8) Car Parking: All parking and associated facilities are to be designed and constructed             in accordance with AS 2890 Series.

 

Engineering conditions to be complied with prior to Construction Certificate

 

37.       (S2) Stormwater Requirement: The stormwater runoff from the new and altered             impervious areas within the development shall be connected to the existing drainage             system in accordance with the requirements of Lane Cove Council’s DCP-Stormwater             Management.

 

            The existing stormwater system is to be certified that it is in good working order and meets             the requirements set out in Part O, Council’s DCP-Stormwater Management. The             certification is to be carried out by a fully licensed and insured plumber or a suitably             qualified engineer prior to the issue of the Construction Certificate.

 

            Where an existing element does not comply with current standards the subject element is to             be replaced.

 

Where the existing system does not comply with Part O, Councils DCP-Stormwater Management a drainage design is required. The stormwater drainage plan is to be prepared and certified by a suitably qualified engineer and submitted to the Principal Certifying Authority prior to the issue of the Construction Certificate. The design is to be certified that it fully complies with, AS-3500 and Part O, Council's DCP-Stormwater Management.

 

38.       (V1) Proposed Vehicular Crossing: The proposed vehicular crossing shall be constructed             to the specifications and levels issued by Council. A ‘Construction of Residential Vehicular             Footpath Crossing’ application shall be submitted to Council prior to the issue of the             Construction Certificate. All works associated with the construction of the crossing shall             be completed prior to the issue of the Occupation Certificate.

 

39.       (B1) Council infrastructure damage bond: The applicant shall lodge with Council a $3000             bond or bank guarantee. The bond is to cover the repair of damage to Council's roads,             footpaths, kerb and gutter, drainage or other assets as a result of the development. The             bond will be released upon issuing of the Occupation Certificate. If Council determines that             damage has occurred as a result of the development, the applicant will be required to repair             the damage. Repairs are to be carried out within 14 days from the notice. All repairs are to             be carried in accordance with Council’s requirements. The full bond will be retained if             Council’s requirements are not satisfied. Lodgement of this bond is required prior to the             issue of the Construction Certificate.

 

Engineering condition to be complied with prior to commencement of construction

 

40.       (C2) Erosion and Sediment Control: The applicant shall install appropriate sediment             control devices prior to the start of any works on the site. The devices shall be maintained      during the construction period and replaced when necessary.

 

Engineering condition to be complied with prior to Occupation Certificate

 

41.       (M2) Certificate of Satisfactory Completion:  Certificates from a registered and licensed             Plumber or a suitably qualified Engineer must be obtained for the following matters. The             plumber is to provide a copy of their registration papers with the certificate. The relevant             Certificates are to be submitted to the Principal Certifying Authority prior to issue of any             Occupation Certificate.

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

 

 

 


 

 

 

 

Michael Mason

Executive Manager

Environmental Services Division

 

 

ATTACHMENTS:

AT‑1View

Site Location Plans

2 Pages

 

AT‑2View

Neighbour Notification Plan

2 Pages

 

AT‑3View

Survey Report and Height Location Plan

2 Pages