Independent Hearing and Assessment Panel Meeting

4 February 2014, 5:00pm
Please note a site inspection will be held at 3pm for panel members only.



Notice of Meeting


Dear Panel Members,


Notice is given of the Independent Hearing and Assessment Panel Meeting, to be held in the Council Chambers, 48 Longueville Road Lane Cove on Tuesday 4 February 2014 commencing at 5:00pm. The business to be transacted at the meeting is included in this business paper.


Yours faithfully





Craig Wrightson

General Manager


IHAP Meeting Procedures


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

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

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

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

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

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

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



Independent Hearing and Assessment Panel 4 February 2014












public forum


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







Independent Hearing and Assessment Panel Reports


2.       52B Cliff Road, Northwood.


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








Independent Hearing and Assessment Panel Meeting 4 February 2014

52B Cliff Road, Northwood.



Subject:          52B Cliff Road, Northwood.    

Record No:    DA98/287 - 44845/13

Division:         Environmental Services Division

Author(s):      Peter Walker 




Property:                     52B Cliff Road, Northwood.


DA No:                                    287/1998 


Date Lodged:              15 July 2013


Cost of Work:              Not applicable


Owner:                                    I H Rozenauers


Applicant:                    Inga Rozenauers



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


R2 - (Low Density Residential)










Class 10b




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

Ward Councillors            East Ward

Progress Association      Northwood Action Group

Other Interest Groups     Ingham Planning Group




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




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

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

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

·            No objections were raised from the internal referrals;

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

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

·            Consent for the modification is not supported.




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


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


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




The applicant proposes the following modifications:-


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


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


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




10 November 1998


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


2 February 2000


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


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

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

3.       The proposal is an overdevelopment of the site;

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

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

6.       The public interest.


2 March 2000


A Section 82A Review application was lodged with Council.


24 October 2000


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


22 March 2002


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


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


18 February 2008


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


28 April 2008


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


15 July 2013


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





Local Environmental Plan 2009


Zoning:           R2 - (Low Density Residential)


Site Area:       1017.9m²






Floor Space Ratio

No change



Height of Buildings

No change to dwelling house




Comprehensive DCP


Only the relevant controls will be addressed.







Provide for view sharing

Extension into view corridor

LEC principles


Deck/Balcony depth (max)

5m approx

3m unless privacy can be addressed.




Private Swimming Pools







On elevated terrace

Behind the front building line and not on elevated decks


When viewed from waterways and foreshore areas

May be viewed  from some public areas

Not to adversely affect the amenity and outlook of neighbourhood.

Yes - the pool would be generally screened by vegetation

Setback to Neighbour’s House (min)


3m to waterline


Setback to boundary (min)


1m to waterline


Height (max)

(steeply sloping sites)

2 - 2.8m


1.8m on steeply sloping blocks.         


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


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


Setback from trees >5m in height (min)

Cheese tree >5m


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

Location of pool pump/ filter

Required as a  condition of consent

As far as practical from neighbouring properties.

Already a condition of consent





Manager Urban Design and Assets – 31 July 2013


No objections raised.


Manager Parks – 3 September 2013


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


Manager Bushland – 3 September 2013


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


Rural Fire Service


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


Other (Heritage, Traffic, Waterways)


Not applicable




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


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


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


S.96(2)(b)  Consultation with the relevant Minister, public authority or approval body


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


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


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


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


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


S.96(3) Assessment of the proposed modifications


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


Proposed modifications:-


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




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


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




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


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




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


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

there is no reason for Council to find otherwise.

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


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




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


      Commissioners Browns finding stating:-


Paragraph 12:


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


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


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


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


Other Planning Instruments


Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005


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


The plan also lists matters to be taken into consideration in relation to the maintenance, protection and enhancement of the scenic quality of foreshores and waterways. The scale, form, design and siting of any building should be based on an analysis of:-


  1. the land on which it is to be erected;
  2. the adjoining land; and
  3. the likely future character of the locality.


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



Sydney Harbour Foreshores and Waterways Area Development Control Plan 2005.


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


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


State Environmental Planning Policy No 55 – Contaminated Land.


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


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


Not applicable




Environmental Planning and Assessment Regulation 2000


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


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


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


Development Control Plan 2009 


1)         Provide for view sharing


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


Proposed  -  Extension into view corridor.




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


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


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




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


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



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


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




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


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



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




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


2)         Deck/Balcony depth (max)


Requirement  - 3m maximum unless privacy can be addressed


Proposed  - 5m




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


3)         Pool location


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


Proposed  -  Behind building line but is on an elevated terrace




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


4)         Pool height (maximum)


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


Proposed  -  2m – 2.8m




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


5)         Setback from boundary if coping is above ground level


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


Proposed  -  900mm




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




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


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


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


54 Cliff Road, Northwood.


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




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


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




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


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




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


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




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


50A Cliff Road


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




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


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




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


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




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




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


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





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



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


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


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







Michael Mason

Executive Manager

Environmental Services Division




AT‑1 View

Neighbour Notification Plans

1 Page


AT‑2 View

Site Location Plans

2 Pages


AT‑3 View

Letter of determination dated 24 October 2000

8 Pages


AT‑4 View

Land and Environment Court Order No. 10841 of 2001

9 Pages


AT‑5 View

Fegan v Lane Cove Council (2008) NSW LEC 1171

9 Pages




Independent Hearing and Assessment Panel Meeting 4 February 2014

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



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

Record No:    DA13/143-01 - 4362/14

Division:         Environmental Services Division

Author(s):      May Li 





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


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


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


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


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


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


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


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


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


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




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


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


Building Height


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


Floor Space Ratio (FSR)


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


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


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


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


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

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

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

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

§ the R3 zone in Kara St (0.7:1); and

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


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


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


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




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


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


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

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

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


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


·    providing privacy and amenity;

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

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

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


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


Building Setbacks


North Western Boundary


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


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


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


South Eastern Boundary


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


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

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




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


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


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


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




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




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


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


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


Traffic Management


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


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

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


These mitigation measures may include:-


·    Travel Access Guides for new residents;

·    Increased provision of bicycle parking;

·    On-site car share provision;

·    Greater proportion of affordable housing;

·    Reduced scale of development;

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

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


The submission has not addressed any of the above concerns. 


Car Parking


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


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


Section 94 Contribution


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


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




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


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


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


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







That the development application is recommended for refusal for the reasons stated in the original assessment report.








Michael Mason

Executive Manager

Environmental Services Division




AT‑1 View

Original report dated 3 December 2013

23 Pages


AT‑2 View

Applicant's submission dated 2 December 2013

16 Pages


AT‑3 View

Letter from NSW Government Planning & Infrastructure dated 20 December 2013

1 Page


AT‑4 View

Plan of 390-398 Pacific Highway

1 Page


AT‑5 View

Letter from Winim requesting deferral to submit amended plans

2 Pages