Lane Cove Local Planning Panel 21 October 2021

AGENDA

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Agenda

Lane Cove Local Planning Panel Meeting

21 October 2021  

 

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Notice of Meeting

 

Dear Panel Members,

 

Notice is given of the Lane Cove Local Planning Panel Meeting, to be held by Zoom on Thursday 21 October 2021 commencing at 3pm. The business to be transacted at the meeting is included in this business paper.

 

Yours faithfully

Craig - GM

Craig Wrightson

General Manager

 

Lane Cove Local Planning Panel Meeting Procedure

 

The Lane Cove Local Planning Panel (LCLPP) 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 Lane Cove Local Planning 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 LCLPP 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 LCLPP, 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.

 

 

DECLARATIONS OF INTEREST

 

APOLOGIES

 

NOTICE OF WEBCASTING OF MEETING

 

 

Lane Cove Local Planning Panel Reports

 

2.       88 River Road, Greenwich...................................................................................... 5

 

3.       60 Cliff Road, Northwood................................................................................... 27

 

 

 

 

 


 

Lane Cove Local Planning Panel Meeting 21 October 2021

88 River Road, Greenwich

 

 

Subject:          88 River Road, Greenwich    

Record No:    DA21/85-01 - 57229/21

Division:         Environmental Services Division

Author(s):      Henry Burnett 

 

 

 

DA Number

Council Reference: DA85/2021

Portal Reference: PAN-117059

 

Proposed Development

Construction of a dual occupancy (attached) and strata subdivision.

 

Street Address

88 River Road, Greenwich

 

Applicant/Owner

Applicant: Brasson Investments Pty Ltd

Owner: Brasson Investments Pty Ltd

 

Date of DA Lodgment

8 July 2021

Development Cost

 

$1,500,000.00

Public Notification Period

Notification Period: 9 July 2021 to 25 July 2021

 

Submissions Received

Five (5) submissions received by way of objection.

 

Recommendation

Refusal

Local Planning Panel Referral Criteria (Schedule 1 of Planning Direction)

·      Departure from Development Standards: Development that contravenes a development standard imposed by an environmental planning instrument by more than 10%.

 

List of all relevant s4.15(1)(a) matters

 

·      relevant environmental planning instruments

 

·      SEPP 55 – Remediation of Land;

·      SEPP (Building Sustainability Index) 2004;

·      SREP (Sydney Harbour Catchment) 2005;

·      Lane Cove Local Environmental Plan 2009.

 

·      proposed instrument that is or has been the subject of public consultation under the Act and that has been notified to the consent authority

 

·      Draft Environment SEPP; and

 

·      relevant development control plan

 

·      Lane Cove Development Control Plan 2010

 

·      relevant planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4

 

·      Nil

 

·      relevant regulations e.g. Regs 92, 93, 94, 94A, 288

 

-     Nil

 

·      coastal zone management plan

 

·      Nil

 

·      other relevant plans

 

·      Lane Cove Section 7.11 Contributions Plan

 

List all documents submitted with this report for the Panel’s consideration

The following documentation was submitted with the Development Application (PAN-117059) and is included as a list of attachments to the Panel.

 

Attachment

Document

Prepared By

1

Statement of Environmental Effects

Planning Lab

2

Clause 4.6 Variation – Floor Space Ratio

Planning Hub

3

Architectural Plans

Ironbrook Property Group

4

BASIX Certificate

ESD Synergy Pty Ltd

5

Heritage Impact Statement

John Oultram Heritage and Design

6

Arboricultural Impact Assessment

Laurence and Co.

7

Legal Advice 1

Allens Linklaters

8

Legal Advice 2

Allens Linklaters

9

DA Form

Brasson Investments Pty Ltd

10

Stormwater Management Plan

Enstruct

11

Survey Plan

C.M.S. Surveyors

 

It is noted owners consent and a Section 10.7 Certificate were also submitted.

 

Clause 4.6 requests

·      Floor Space Ratio

Summary of key submissions

·      Density

·      Construction Impacts

Report prepared by

Henry Burnett

Report date

11 October 2021

Clause 4.6 Exceptions to development standards

If a written request for a contravention to a development standard (clause 4.6 of the LEP) has been received, has it been attached to the assessment report?

 

Yes

 


 

1.         EXECUTIVE SUMMARY

 

The Development Application is for the construction and strata subdivision of a two storey dual occupancy (Attached) with basement car parking.

 

The Development Application has been assessed against Lane Cove Local Environmental Plan 2009 and is considered unsatisfactory for the following reasons:-

 

·    Subdivision of dual occupancy development is not permitted (Clause 4.1A) and is excluded from the operation of Clause 4.6;

 

·    The lot size (667.2m2) is less than the minimum lot size prescribed for dual occupancy (attached) development (750m2) and no Clause 4.6 written request has been received addressing the development standard departure; and

 

·    The proposed floor space ratio (0.576:1 (15.34% variation)) exceeds the prescribed maximum floor space ratio (0.5:1) and the submitted Clause 4.6 written request does not meet the relevant tests.

 

The Development Application has been assessed against Lane Cove Development Control Plan 2010 and the variations identified and addressed in the report. 

 

The Development Application was notified in accordance with Council policy and five (5) submissions were received. The submission concerns include density and construction considerations.

 

The Development Application is reported to Panel with a recommendation for refusal.

 

2.         REASON FOR REFERRAL TO LOCAL PLANNING PANEL

 

The Lane Cove Local Planning Panel (LCLPP) is a panel of appropriately qualified people independent of Council charged with determining a range of development applications on behalf of Council. The subject Development Application is referred to the Lane Cove Local Planning Panel in accordance with the following criteria in Schedule 1 of the Section 9.1 of the Environmental Planning and Assessment Act, 1979 Planning Direction dated 30 June 2020:

 

i.    Departure from Development Standards: Development that contravenes a development standard imposed by an environmental planning instrument by more than 10%.

 

 

3.         SUBJECT SITE

 

The site is known as No. 88 River Road, Greenwich (Lot 2 in DP1236208) with an area of 667.2m2. The site is vacant with a driveway, retaining wall structures and a large number of existing trees. The site has varying topography characterised by a raised garden area in the north-eastern corner continuing down the eastern side of the site, and the slope of River Road which falls 2.5 metres from east to west across the frontage of the site. An aerial photograph of the site is shown in Figure 1 below and an aerial perspective in Figure 2.

 

Figure 1: Aerial Photograph (Source: Nearmap)

 

 

Figure 2: Aerial Perspective (Source: Nearmap)

 

 

4.         PRE-DA MEETING

 

No pre-da meeting was held with Council prior to the lodgment of the Development Application.

 

 

 

 

 

5.         DA ASSESSMENT HISTORY

 

Table 1 – DA Assessment History

Date

Description

8 April 2015

Development Application DA186/2014 issued as deferred commencement for the subdivision of 90 River Road, Greenwich into two torrens title lots and a driveway crossing for the new lot.

23 May 2016

Operative consent issued for Development Application DA186/2014.

8 July 2021

Subject Development Application submitted.

 

6.         PROPOSAL

 

The Development Application is for the construction and strata subdivision of a two storey dual occupancy (Attached) with basement car parking. The proposed front elevation is provided in Figure 3 below.

 

Figure 3: Proposed Front Elevation (Source: Architectural Plans)

 

A description of the proposal is provided in Table 2 as follows:

 

Table 2 – Description of Proposal

Part

Description

Tree Removal

The site contains a stand of trees along the front and eastern boundaries of the site. The proposal seeks to remove seven (7) Brush box trees along the eastern boundary.

 

Basement

·    Vehicular and pedestrian access from River Road via a shared driveway and path;

·    Basement parking area with turntable and a total of four (4) car parking spaces at a rate of two parking spaces per dwelling; and

·    Storage and stair access to each dwelling.

 

Level 1

Each dwelling is proposed to contain the following at Level 1:

 

·    Front portico;

·    Bathroom;

·    Study or Bedroom 4;

·    Living Room and Terrace;

·    Kitchen / Living / Dining and Terrace / Outdoor Dining

 

Level 2

 

Each dwelling is proposed to contain the following at Level 2:

 

·    Front balcony;

·    Bedroom 2, Bedroom 3, Bathroom and Laundry;

·    Gallery and Void to Living Room below;

·    Bedroom 1, Ensuite and Rear balcony.

 

Earthworks

 

Approximately 2.5 metres of excavation for the basement level and significant retaining walls along the eastern boundary are proposed.

 

 

Subdivision

 

The proposal seeks strata subdivision of the development however no draft plan of subdivision has been submitted. It is unclear how the common driveway/pedestrian access and basement area would be dealt with.

 

 

7.         SECTION 4.15 ASSESSMENT

 

The following assessment is provided against the relevant provisions of Section 4.15 of the NSW Environmental Planning and Assessment Act, 1979:

 

 

7.1       Any environmental planning instrument:

 

 

7.1.1    SREP (Sydney Harbour Catchment) 2005

 

The land is within the Sydney Harbour Catchment Map under SREP (Sydney Harbour Catchment) 2005. The site is not within the foreshore or waterways area. The proposal would not detract from the aims of the instrument and is considered satisfactory with respect to SREP (Sydney Harbour Catchment) 2005.

 

7.1.2    SEPP 55 – Remediation of Land

 

The land is subject to SEPP 55 – Remediation of Land. The proposal seeks to maintain the residential use of the site and no concern was raised during the subdivision of the land. The proposal is considered satisfactory with respect to SEPP 55 – Remediation of Land.

 

7.1.3    SEPP (BASIX) 2004

 

The proposed development is subject to SEPP (BASIX) 2004. The proposal was accompanied by a BASIX Certificate No. 1204170M. The proposal does not indicate BASIX commitments on the submitted DA plans as required by the Certificate. The proposal is unsatisfactory with respect to SEPP (BASIX) 2004.

7.1.4    Lane Cove Local Environmental Plan 2009

 

7.1.4.1 Permissibility

 

The site is zoned R2 Low Density Residential under LCLEP 2009 and dual occupancy (attached) development is permitted within the zone.

 

7.1.4.2 Minimum Lot Size for Dual Occupancy (Attached) Development

 

Clause 4.1 of LCLEP 2009 states the following in relation to the minimum subdivision lot size:

 

4.1   Minimum subdivision lot size

 

(1)  The objectives of this clause are as follows—

 

(a)  to promote consistent subdivision and development patterns in zones.

 

(2)  This clause applies to a subdivision of any land shown on the Lot Size Map that requires development consent and that is carried out after the commencement of this Plan.

 

(3)  The size of any lot resulting from a subdivision of land to which this clause applies is not to be less than the minimum size shown on the Lot Size Map in relation to that land.

 

(4)  This clause does not apply in relation to the subdivision of any land—

 

(a)  by the registration of a strata plan or strata plan of subdivision under the Strata Schemes Development Act 2015, or

(b)  by any kind of subdivision under the Community Land Development Act 1989.

 

(4A)  Despite subclause (3), the size of a lot for the purposes of a dual occupancy must not be less than—

 

(a)  for dual occupancy (attached)—750 square metres, and

(b)  for dual occupancy (detached)—900 square metres.

 

The proposal is for a dual occupancy (attached) development on a lot with a size of 667.2m2. The size of the lot does not comply with Clause 4.1(4A)(a) of LCLEP 2009. No Clause 4.6 written request has been submitted to accompany the variation to the development standard. The consent authority cannot approve a variation to a development standard without a Clause 4.6 written request. The applicant’s view that Clause 4.1(4)(a) turns off Clause 4.1 is not considered satisfactory as the clause relates to the land on which the whole dual occupancy development is sited. The proposal breaches the minimum lot size for dual occupancy (Attached) pursuant to LCLEP 2009.

 

7.1.4.3 Subdivision of Dual Occupancy Development

 

Clause 4.1A of LCLEP 2009 states the following in relation to the subdivision of dual occupancies:

 

4.1A   Subdivision of dual occupancies

 

Despite any other provision of this Plan, development consent must not be granted to the subdivision of land on which a dual occupancy is erected or proposed to be erected if the subdivision would result in the dwellings that comprise the dual occupancy being located on separate lots.

The proposal includes the subdivision of land (which includes strata subdivision) and would result in the proposal being on separate lots (albeit in a strata scheme). No draft plan of subdivision has been submitted with the application to identify the way the site is proposed to be divided in a strata scheme. The proposal does not comply with Clause 4.1A of LCLEP 2009. Clause 4.1A of LCLEP 2009 is not amenable to Clause 4.6 (and no request for variation was submitted in any event). Accordingly, it is considered that there is no power for the consent authority to grant consent to the proposed subdivision.

 

7.1.4.4 Other Development Standards

 

An assessment against the building height and floor space ratio controls is provided in Table 3.

 

Table 3 – Lane Cove Local Environmental Plan 2009 – Development Standard Compliance

Standard

Mapped Maximum

Proposed Maximum

Compliance

Floor Space Ratio

0.5:1

Applicant Assessment: 0.576:1 (15.34% variation)

Council Assessment: 0.576:1 + Additional Areas within Basement

 

Yes

 

Building Height

9.5m

Applicant Assessment:

8.5m

Council Assessment:

9.2m

 

Yes

 

 

7.1.4.4.1 – Clause 4.6 Written Request – Floor Space Ratio

 

Clause 4.6 of LCLEP 2009 allows exceptions to development standards.  Consent must not be granted for development that contravenes a development standard unless the consent authority has considered and agrees with the written request from the applicant that seeks to justify the contravention of the development standard. This written request must demonstrate compliance with the relevant provisions of Clause 4.6 of LCLEP 2009.  These matters are discussed below:

 

Written request provided by the applicant

 

The applicant provided a written request seeking a variation to the development standard with the lodged (and amended) application.  The written request is for a 15.34% variation to the mapped maximum floor space ratio standard of 0.5:1.

 

Under Clause 4.6(3) the applicant is required to demonstrate:

(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.

 

i.        Whether compliance with the development standard would be unreasonable or unnecessary in the circumstances of the case.

 

The Clause 4.6 written request states that it is unreasonable or unnecessary to require strict compliance with the development standard for the following reasons:

 

·    In Wehbe v Pittwater Council (2007) NSW LEC 827 established that a means to demonstrate unreasonable or unnecessary includes that ‘the objectives of the standard are achieved notwithstanding non-compliance with the standard’.

 

·    Compliance with the objectives of Clause 4.4 – Floor Space Ratio, is addressed below (in the public interest test) including a consideration of the applicant’s view on the objectives being met. It is not considered that it has been demonstrated that the objectives of the standard have been met.

 

·    Given the proposal is not considered to comply with the objectives of the standard, it has not been demonstrated that compliance with the standard is unreasonable or unnecessary in the circumstances of the case.

 

The Clause 4.6 written request does not demonstrate that compliance with the development standard would be unreasonable or unnecessary and accordingly does not satisfy Clause 4.6(3)(a) of Lane Cove Local Environmental Plan 2009.

 

Comment:

 

ii.       Environmental planning grounds to justifying contravening the development standard.

 

The decision in Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 demonstrates that the requirement in Clause 4.6(3)(b) of the LEP to justify there are sufficient environmental planning grounds for the variation, requires identification of grounds 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.

 

The Clause 4.6 written request states the following environmental planning grounds (in full):

 

·    The proposal is consistent with the objectives of the zone and the objectives of the floor space ratio control.

·    The development as proposed does not result in any adverse impacts on the public domain or adjoining properties.

·    The development as proposed provides appropriate interface with the adjoining heritage item ‘Hazlehurst’ at 90 River Road, Greenwich and does not result in any adverse visual, amenity, heritage impacts.

·    The floor space variation equates to a maximum 15.34% and does not result in any unnecessary bulk and is not visually prominent.

·    The proposed development achieves compliance with the key numerical controls of the Lane Cove Development Control Plan (DCP) that guide the envisaged building envelope for the site.

 

Comment:

 

The environmental planning grounds are not considered particular to the circumstances of the case and are considered mostly generic in nature. The heritage impacts are not considered satisfactory by Council’s Heritage Advisor as outlined in this report. Adjoining the heritage item, the proposal does not comply with the wall height control of 7m (7.6m including parapet) of LCDCP 2010, with a 9.2m wall height proposed, contrary to the claim of compliance in the Clause 4.6 written request. This control seeks to establish an appropriate wall height for flat roof dwellings to mitigate the impacts of bulk and scale. Overall, the environmental planning grounds put forward in the Clause 4.6 written request are not considered to satisfy Clause 4.6(3)(b) of Lane Cove Local Environmental Plan 2009.

 

iii.      Consistent with the zone objectives and objectives of the development standard.

 

Development consent cannot be granted to vary a development standard unless a consent authority is satisfied that the proposed development would be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out. An assessment against the objectives of floor space ratio and the R2 Low Density Residential zone contained within LCLEP 2009 are provided as follows:

 

Floor Space Ratio Objectives

 

Clause 4.4 (1) provides the following objectives:-

 

(a)  To ensure that the bulk and scale of development is compatible with the locality.;

 

Comment: The applicant’s Clause 4.6 written request includes general statements about compatibility but does not indicate how this particularly achieved.

 

R2 Low Density Residential Zone Objectives

 

The R2 Low Density Residential Zone objectives are as follows:

 

·   To provide for the housing needs of the community within a low density residential environment.

 

Comment: The proposed dual occupancy development is not commensurate with the low-density residential environment in which it is proposed to be situated and is resultant from a development form not intended for lots of this size, and a GFA greater than allowed for by the FSR applying to the site.

 

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

 

Comment: N/A

 

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

 

Comment: The proposed bulk and scale is considered to reduce the residential amenity of a detached single family area through providing a dwelling design that is larger than anticipated and over-bearing on the heritage item at No. 90 River Roadd

 

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

 

Comment: Satisfactory – Not Visible.

 

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

 

Comment: Landscaping is adversely impacted by the proposed development. Reducing the GFA may enable trees on the eastern boundary to be retained.

 

In accordance with the above, the development does not comply with the Lane Cove Local Environmental Plan 2009 objectives for the Floor Space Ratio standard or the R2 Low Density Residential zone and is therefore not in the public interest.

 

iv.        Concurrence of the Director General.

 

The Local Planning Panel can assume concurrence for exceptions to development standards where the variation to the development standard is greater than 10%.  As the proposal is referred to the Local Planning Panel for determination; concurrence is taken to be assumed.

 

v.         Conclusion

 

The objectives of Clause 4.6 are to provide an appropriate degree of flexibility in applying certain development standards and to achieve better outcomes for and from development by allowing flexibility in particular circumstances. The variation to the height standard of LCLEP 2009 is not well-justified in this instance.  There are insufficient environmental planning grounds and the objectives of the standard are not met. The development does not satisfy the objectives and the criteria outlined in clause 4.6. As such, the variation is not considered satisfactory or in the public interest.

 

7.1.4.5 Other Considerations

 

Table 4 – Lane Cove Local Environmental Plan 2009 – Other Relevant Provisions

Provision

Assessment

Clause 5.10(5) - Heritage Conservation

The proposal is subject to Clause 5.10 of LCLEP 2009 due to the land being within the vicinity of a number of local heritage items. Clause 5.10(5) states the following:

 

(5) Heritage assessment The consent authority may, before granting consent to any development—

(a)  on land on which a heritage item is located, or

(b)  on land that is within a heritage conservation area, or

(c)  on land that is within the vicinity of land referred to in paragraph (a) or (b), require a heritage management document to be prepared that assesses the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area concerned.

 

Figure 4: Heritage Map (Source: LCLEP 2009)

 

The Development Application was accompanied by a Heritage Impact Statement. Council’s Heritage Advisor has reviewed the HIS and has provided the following assessment:

 

The Proposal

 

The proposed Dual Occupancy development is located on land subdivided from the adjacent property, Hazelhurst 90 River Road. It is all new construction providing two separate residential units, brick and timber cladding to walls with skillion roof planes. The work includes driveway and retaining wall to the River Road frontage and landscaping to the site.

 

Heritage Items

 

88 River Road Street is located adjacent to heritage item 'Hazelhurst' 90 River Road, a two storey Arts and Crafts style Federation period villa to the west, and is in the vicinity of listed item 92 River Road, a Federation single storey residence on the opposite corner of Sarner Street. The site is not located in the Greenwich Heritage Conservation Area.

 

Potential Heritage Impact

 

The proposed development would have some impact on the adjacent heritage item, at a higher elevation in relation to No 90 due to the cross fall of the site. Aspects of the development which mitigate its impact include stepping back to the first floor level from the front, articulation of the west elevation with recessed terraces and balconies. The flat rooflines have minimised the height of the building. Visual impact has been moderated by the use of contrasting materials and textures including brickwork to the ground floor, plywood panels and aluminium sunscreens to the first floor.  

 

The heritage item, Hazelhurst, retains adequate curtilage and landscape setting between the rear of the building and the boundary of the new subdivision. The building occupies a corner site and remains prominent in the streetscape of River Road, which would not be dominated by the proposed development. 

 

Landscape

 

Three major elements remain as part of the landscape to the former rear yard of Hazelhurst, prior to subdivision. These elements contribute to the streetscape setting and retain significance for their historical relationship with the adjacent heritage item. These include:

 

·    The row of Brush box to the east boundary;

·    The row of Leyland cypress to the River Road frontage; and

·    The stone retaining wall to the River Road frontage.

 

The architectural plans indicate an intention to retail all these elements in the proposed development, however the arborist's report recommends removal of selected trees due to their deteriorating condition.

 

Recommendations

 

I have no objection to the proposed development and consider that potential impact on the heritage significance of the adjacent heritage item at 90 River Road is acceptable. There is no potential for impact on the heritage item at 92 River Road.

 

I consider that the former landscape elements of Hazelhurst, the groups of Brush box and cypress trees, and the sandstone retaining wall to River Road should be retained and protected. Trees indicated for removal due to poor structural condition should be replaced with new plantings of similar species.

 

Comment: Council’s Heritage Advisor does not object to the development except for the need to protect the three major landscaping elements. The proposal would remove the brush box along the east boundary and is therefore not considered satisfactory with respect to Heritage. The proposal is not considered satisfactory with respect to Clause 5.10(5) of LCLEP 2009.

 

 

 

 

7.2        Any proposed instrument (Draft LEP, Planning Proposal)

 

 

7.2.1    Draft Environment SEPP

 

The Draft Environment SEPP seeks to consolidate a number of existing environmental planning instruments including SEPP 55 – Remediation of Land. The Draft SEPP was subject to public exhibition between 31 January and 13 April 2018. The new draft measures primarily relate to scenarios where more complex remediation/ongoing management is required, and where the certification of remediation works is undertaken as development not requiring consent. While the Draft does consider introducing planning guidelines for the assessment/preparation of site investigations, the shortcomings of the DSI are made with respect to the existing instrument. The proposal is not any further inconsistent with the Draft Environment SEPP.

 

 

7.3       Any development control plan

 

 

7.3.1    Lane Cove Development Control Plan 2010 – Dual Occupancy Development

 

Table 5 – LCDCP 2010 - Dwelling House – Table of Compliance

Part

Control

Proposed

Complies

Front setback (min)

 

Consistent with area or 7.5m

 

Given the site is situated between two corner allotments, the average (Rather than predominant) setback assessment is considered satisfactory.

 

Yes

Side setback (min)

 

1200mm single storey

1500mm two storey

1200mm

No, see variation assessment below.

 

Rear setback (min)

 

6m for dual occupancy development

Min. 6.3m (though generally greater).

Yes

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

7.0m

 

9.2m

No, see variation assessment below.

 

Number of Storeys (max)

2

2 + garage

Yes

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

35%

 

 

 

44.6%

Yes

Cut and Fill (max)

1m

Insufficient top and bottom of wall retaining wall height detail to understand cut and fill at the boundary interfaces.

 

Excavation for basement is up to 2.5-3.0m.

 

No, see variation assessment below.

Solar Access

 

3 hrs as per DCP.

Provided.

Yes

Heritage Conservation

See heritage referral assessment.

See LEP and referral assessment.

No, see LEP and referral assessment.

 

Deck/Balcony depth (max)

3m

 

3.2m

No, see variation assessment below.

 

Private open space

 

24 m² (min)

4m minimum depth

Provided.

Yes

Off-street spaces (min)

2

Provided.

Yes

Driveway width

3m at the lot boundary

Existing.

Yes

Front fence height (max)

 

Solid:              900mm

Lightweight:    1.2m

Existing.

Yes

 

7.3.1.1 Variations

 

The following section of the report addresses the proposed variations to the prescriptive DCP measures sought to be varied having regard to the applicant’s submitted justification and the objectives of the prescriptive measure sought to be varied:

 

i. Side Setback – Part C1.3.2 of LCDCP 2010 prescribes a minimum side setback of 1500mm where the proposal includes a setback of 1200mm at points on the ground floor. Generally this is offset by a more generous upper level setback on the first floor and is supported. However, in the south-western corner of the dwelling where the garage is above ground level (existing) this results in a two storey form set back only 1200mm. A greater setback is required in this location as shown in Figure 5 below. Accordingly, the proposal is not considered satisfactory with respect to Part C1.3.2 of LCDCP 2010.

 

Figure 5: Side Setback

 

ii. Wall Height – Part C1.7.1(a) stipulates a maximum wall height of 7.0m where a wall height of 9.2m is proposed. The stepping in the wall (shown in Figure 5) is not sufficient to offset its impact. Of particular concern is its contribution to bulk and scale when perceived from the streetscape and adjoining heritage item. The variation to Part C1.7.1(a) is considered unsatisfactory.

 

vi. Cut and Fill – Part C1.6(d) limits excavation to 1m at any point on the site unless it is demonstrated that the site’s slope is too steep to reasonably construct a 2 storey dwelling with this extent of excavation. The proposal includes up to 2.5-3.0m of excavation for the basement parking area.

 

The site is characterised within the applicant’s architectural Site Analysis as being a flat benched site. There is ample area to fit a single dwelling house with car parking without the need for excessive excavation. An indicative dwelling house design was submitted with the subdivision application that did not rely on such excavation. Even if one was to characterise the site as sloping up from River Road (allowing a basement garage), the size of the garage is excessive and includes additional storage areas and ancillary areas that contribute to the extent of excavation.

 

Further to the above, the proposal includes extensive retaining walls though insufficient top and bottom of wall heights (and associated existing levels) are provided to enable a complete assessment of this component. In addition, a drop edge beam should be utilised along the western edge of the dwelling (rather than a retaining wall directly on the western boundary) to reduce earthworks impacts on the adjoining heritage item at No. River Road, Greenwich. The variation to Part C1.6(d) is considered unsatisfactory.

 

 

vii. Deck Depth – Part C1.8.2(c) limits balconies greater than 1m above ground level (Existing) to 3m in depth. The proposal includes two balconies approximately 3.2m in depth. The decks are considered reasonably sized and visual privacy is addressed through privacy screens. The variation to Part C1.8.2(c) is considered satisfactory.

 

7.3.2    Lane Cove Development Control Plan 2010 – Other Sections

 

The other relevant sections of Lane Cove Development Control Plan 2010 have been addressed through referrals as outlined Table 6 as follows:

 

Table 6 - Referrals

Referral

DCP

Comment

Tree Preservation

 

Part J – Landscaping

Unsatisfactory - The proposal seeks to remove seven Brush box trees located on the eastern boundary of the site. The trees are situated in a row and are currently providing screening with neighbouring sites. The trees, at the time of the assessment were assessed as in fair to good health with a medium useful life expectancy of 15-40 estimated remaining years. The trees do have various sections of dieback, deadwood and some decay within the trees however this is not significant enough to stop them from being a material constraint to proposed development. The assessment is backed up by the comments in the Arborist report that the trees should be considered for retention. The proposal consists of the construction of a dual occupancy and appears to have given little consideration for the retention of the trees. In addition, the provided site plan (DA02 A) shows the proposed works with the row of trees in site, despite their proposed removal. This is considered to be misleading as the proposal seeks to remove all tree canopy within the site boundaries. The documents provided do not show any replacement trees for the site, furthermore the available space within the setbacks appears to be insufficient to support, at a minimum, the seven canopy trees proposed to be removed. The proposal is not supported and is recommended to be refused or withdrawn.

Development Engineer

 

Part O – Stormwater Management

Unsatisfactory – The submitted stormwater plan is considered unsatisfactory for the following reasons:

 

- Rainwater tanks are not shown as per BASIX;

- A combined OSD is not acceptable.

 

 

 

 

7.4       The likely impacts of that development, including environmental impacts on both the             natural and built environments, and social and economic impacts in the locality

 

 

The impacts on both the natural and built environments of the locality have been considered and addressed in the report and are unsatisfactory.

 

 

7.5       The suitability of the site for the development

 

 

The proposed development does not respond appropriately to the site constraints and therefore the site is not suitable for the development.

 

 

7.6       Any submissions made in accordance with this Act or the regulations

 

 

The proposed was notified in accordance with Council policy and five (5) submissions were received. The submissions main points are summarised and addressed Table 7 as follows:

 

Table 7 – Summary of Submissions

Concern

Comment

Size of Lot and Subdivision – should be maintained as per LCLEP 2009.

 

 

The view is shared and addressed in the report.

Inappropriate Density – close to St Leonards South.

 

The density of a dual occupancy development on an undersized allotment is considered in appropriate and is not recommended to be supported.

 

Block Views and Sunlight to 29 Greenwich Road.

 

The roof level is between 650mm to 1400m above the adjoining lowest balcony level on 29 Greenwich Road. Accordingly, there is sufficient allowance for any views across the site and the solar access to within the units would not be impacted. Ground level open space on 29 Greenwich Road is not shown to be impacted on the submitted shadow diagrams.

 

Absence of Geotechnical Reporting – and impacts on 27 Greenwich Road.

 

Council would ordinarily require geotechnical reporting and dilapidation reporting as a standard condition where excavation is proposed. The excavation has a set back of approximately 2.7m from the boundary to 29 Greenwich Road, and even greater to the boundary of 27 Greenwich Road.

 

 

 

 

7.7 Public Interest

 

 

The proposal is not in the public interest as it provides for an overdevelopment of the site that departs from the envisaged low-density residential character of the locality and the planned and anticipated density.

 

8.         Contributions

 

8.1       Section 7.11 Contributions

 

The proposal would be leviable under the provisions of the Lane Cove Section 94 (now 7.11) Contributions Plan at a rate of $20,000.00.

 

8.2       Special Infrastructure Contributions

 

The proposal is not subject to a Special Infrastructure Contribution Levy.

 

9.         Conclusion

 

The matters in relation to Section 4.15 of the Environmental Planning and Assessment Act 1979 have been addressed in the report.

 

The Development Application has been assessed against Lane Cove Local Environmental Plan 2009 and is considered unsatisfactory for the following reasons:-

 

·    Subdivision of dual occupancy development is not permitted (Clause 4.1A) and is excluded from the operation of Clause 4.6;

 

·    The lot size (667.2m2) is less than the minimum lot size prescribed for dual occupancy (attached) development (750m2) and no Clause 4.6 written request has been received addressing the development standard departure; and

 

·    The proposed floor space ratio (0.576:1 (15.34% variation)) exceeds the prescribed maximum floor space ratio (0.5:1) and the submitted Clause 4.6 written request does not meet the relevant tests.

 

The Development Application has been assessed against Lane Cove Development Control Plan 2010 and the variations to side setbacks, wall height and cut and fill are considered unsatisfactory.

 

The Development Application is also considered unsatisfactory on the grounds of heritage impact, tree removal and stormwater management. 

 

The Development Application is reported to the Lane Cove Local Planning Panel with a recommendation for refusal for the reasons outlined below.

 

 

RECOMMENDATION

 

That the Lane Cove Local Planning Panel refuse a variation to the floor space ratio prescribed by Clause 4.4 of the Lane Cove Local Environmental Plan 2009, as it is not satisfied that the applicant’s request has adequately addressed the matters required to be demonstrated by Clause 4.6 of that Plan, and the proposed development would not be in the public interest as it is inconsistent with the objectives of that particular standard and the objectives for development within the zone.

 

That pursuant to Section 4.16(1)(b) of the Environmental Planning and Assessment Act, 1979 the Lane Cove Local Planning Panel at its meeting of 21 October 2021, exercising the functions of Council as the consent authority, refuse Development Application DA85/2021 for the construction of a dual occupancy (attached) and strata subdivision at 88 River Road, Greenwich (Lot 2 in DP1236208)  for the following reasons:

 

1.         Minimum Lot Size for Dual Occupancy Development

 

The proposed lot size does not meet the minimum lot size for dual occupancy (attached) development.

 

Particulars

 

a)   Clause 4.1 of LCLEP 2009 prescribes a minimum lot size of 750m2 for dual occupancy (attached) development.

b)   The site area is 667.2m2.

c)   No Clause 4.6 written request has been submitted to accompany the Development Application.

d)   Given the absence of a Clause 4.6 written request, the consent authority cannot consider a variation to the standard.

 

2.         Subdivision of Dual Occupancy Development

 

The proposed subdivision onto separate strata lots does not overcome the restrictions on the subdivision of dual occupancy development.

 

Particulars

 

a)   Clause 4.1A of LCLEP 2009 does not permit the subdivision of dual occupancy development if each dwelling would be on a separate lot.

b)   The proposed subdivision is considered to be subject to this provision.

c)   Clause 4.1A is excluded from Clause 4.6 and accordingly a variation to the development standard cannot be granted consent.

d)   The nature of the strata subdivision is unknown as no draft plan of subdivision accompanied the Development Application.

 

3.         Floor Space Ratio

 

The proposed floor space ratio exceeds the standard and the Clause 4.6 written request is unsatisfactory.

 

Particulars

 

e)   Clause 4.4 of LCLEP applies a maximum floor space ratio of 0.5:1 to the land.

f)    The proposed floor space ratio is 0.576:1 being a variation of 15.34%.

g)   The calculation should likely include additional areas within the basement level.

h)   The Clause 4.6 written request is considered unsatisfactory as it does not demonstrate the matters to be established under Clause 4.6(3).

i)    The floor space ratio variation is not in the public interest as it does not comply with the objectives of the standard or zone.

 

4.         Wall Height

 

The wall height is unsatisfactory as it would exacerbate the height of the flat roofed building within the streetscape.

 

Particulars

 

a)   Part C1.7.1(a) of LCDCP 2010 stipulates a maximum wall height of 7.0m where a wall height of 9.2m is proposed.

b)   The wall height is resultant from a protruding basement parking level in the south-western corner of the building fronting River Road.

c)   The proposed wall height does not meet the objective of the control relating to providing a typical bulk and scale.

d)   The proposed wall height does not meet the objective of the control relating to minimising impacts on adjoining properties through the visual impact of the wall.

 

5.         Earthworks / Cut and Fill

 

The extent of cut is not reasonably necessary to construct a two storey dwelling house.

 

Particulars

 

a)   Part C1.6(d) of LCDCP 2010 limits excavation to 1m at any point on the site unless it is demonstrated that the site’s slope is too steep to reasonably construct a 2 storey dwelling house with this extent of excavation.

b)   The proposal includes up to 2.5-3.0m of excavation.

c)   The excavation is excessive and resultant from placing a dual occupancy (Attached) development on a lot not sized for such, and large excavated areas that could be limited.

d)   The application is not accompanied by sufficient information to assess the proposed retaining wall designs through top and bottom of wall heights and level information on a Site Plan.

e)   The fill along the western boundary unnecessarily changes the land form and impacts the heritage item and should be incorporated within a drop edge beam and the ground floor terrace pulled back.

 

6.         Heritage Item Impact

 

The proposal would have an unacceptable impact on the heritage item located at No. 90 River Road, Greenwich.

 

Particulars

 

a)   Clause 5.10(5) of LCLEP 2009 requires consideration of the impact on heritage items within the vicinity of development.

b)   The proposed trees on the subject site contribute to the setting of the heritage item.

c)   The proposal would remove a number of brush box trees along the eastern boundary which would substantially detract from the setting of the heritage item.

 

7.         Side Setback

 

The south-western corner of the development requires a setback of 1500mm to account for the protruding basement parking level in this part of the site.

 

8.         Tree Preservation

 

The seven brush box trees should be further considered for retention in line with the applicant’s arborist and Council’s Tree Preservation Officer assessment.

 

9.         Sustainability (BASIX)

 

SEPP (BASIX) 2004 has not been satisfied as the measures required to be indicated on the Development Application plans are not shown.

 

10.       Stormwater Management

 

The stormwater management plan does not include individual on-site detention systems or incorporate the required rainwater tanks under SEPP (BASIX) 2004.

 

11.       Public Interest

 

The proposal is not in the public interest as it provides for an overdevelopment of the site that departs from the envisaged low-density residential character of the locality, the envisaged density through the placement of a dual occupancy development on an undersized lot and through the loss of tree canopy.

 

12.       Site Suitability

 

The proposed development does not respond appropriately to the site constraints and therefore the site is not suitable for the proposed development.

 

 

 

 

ATTACHMENTS:

AT‑1 View

Statement of Environmental Effects

 

Available Electronically

AT‑2 View

Clause 4.6 Variation - Floor Space Ratio

 

Available Electronically

AT‑3 View

Architectural Plans

 

Available Electronically

AT‑4 View

BASIX Certificate

 

Available Electronically

AT‑5 View

Heritage Impact Statement

 

Available Electronically

AT‑6 View

Arboricultural Impact Statement

 

Available Electronically

AT‑7 View

Legal Advice 1

 

Available Electronically

AT‑8 View

Legal Advice 2

 

Available Electronically

AT‑9 View

Development Application Form - 88 River Road, Greenwich - DA85/2021

 

Available Electronically

AT‑10 View

Stormwater Management Plan

 

Available Electronically

AT‑11 View

Survey Plan

 

Available Electronically

  


 

Lane Cove Local Planning Panel Meeting 21 October 2021

60 Cliff Road, Northwood

 

 

Subject:          60 Cliff Road, Northwood    

Record No:    DA21/110-01 - 61474/21

Division:         Environmental Services Division

Author(s):      Henry Burnett 

 

 

 

DA Number

Council Reference: DA110/2021

Portal Reference: PAN-130498

 

Proposed Development

Demolition of Existing Structures and Construction of a Dwelling House

 

Street Address

60 Cliff Road, Northwood

 

Applicant/Owner

Applicant: Dickson Rothschild

Owner: X Li and O Chen

 

Date of DA Lodgment

13 August 2021

Development Cost

 

$5,169,708.00

Public Notification Period

Notification Period: 13 August 2021 to 29 August 2021

 

Submissions Received

Eleven (11) submissions received.

 

Recommendation

Refusal

Local Planning Panel Referral Criteria (Schedule 1 of Planning Direction)

·      Contentious Development: More than 10 unique submissions have been received by way of objection; and

 

·      Departure from Development Standards: Development that contravenes a development standard imposed by an environmental planning instrument by more than 10%.

 

List of all relevant s4.15(1)(a) matters

 

·      relevant environmental planning instruments

 

-     SEPP (Coastal Management) 2018;

-     SEPP 55 – Remediation of Land;

-     SEPP (Building Sustainability Index) 2004;

-     SREP (Sydney Harbour Catchment) 2005;

-     Lane Cove Local Environmental Plan 2009.

 

·      proposed instrument that is or has been the subject of public consultation under the Act and that has been notified to the consent authority

 

-     Draft Environment SEPP; and

 

·      relevant development control plan

 

-     Lane Cove Development Control Plan 2010

 

·      relevant planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4

 

-     Nil

 

·      relevant regulations e.g. Regs 92, 93, 94, 94A, 288

 

-     Nil

 

·      coastal zone management plan

 

-     Nil

 

·      other relevant plans

 

-     Lane Cove Section 7.11 Contributions Plan

 

List all documents submitted with this report for the Panel’s consideration

The following documentation was submitted with the Development Application (PAN-130498) and is included as a list of attachments to the Panel.

 

Attachment

Document

Prepared By

1

Statement of Environmental Effects

Dickson Rothschild

2

Clause 4.6 Variation – Height of Building

Dickson Rothschild

3

Architectural Plans

Dickson Rothschild

4

BASIX Certificate

LC Consulting Engineers

5

Nathers Certificate

LC Consulting Engineers

6

Cost Estimate Report

Napier and Blakeley

7

Online DA Checklist

Dickson Rothschild

8

Arboricultural Impact Assessment

Tree Talk

9

Erosion and Sediment Control Plan

Wilson Consulting Engineers

10

DA Form

Dickson Rothschild

11

Heritage Impact Statement

Weir Phillips Heritage and Planning

12

Notification Plans

Dickson Rothschild

13

Response to Council RFI

Dickson Rothschild

14

Visual Assessment & View Analysis

Dickson Rothschild

15

Stormwater Management Plan

Wilson Consulting Engineers

16

Survey Plan

C.M.S. Surveyors

17

Waste Management Form

Dickson Rothschild

 

It is noted owners consent and a Section 10.7 Certificate were also submitted.

 

Clause 4.6 requests

·      Maximum Height of Buildings

Summary of key submissions

·      Building Height

·      Bulk and Scale

·      View Sharing

Report prepared by

Henry Burnett

Report date

1 October 2021

Clause 4.6 Exceptions to development standards

If a written request for a contravention to a development standard (clause 4.6 of the LEP) has been received, has it been attached to the assessment report?

 

Yes

 

1.         EXECUTIVE SUMMARY

 

The Development Application is for the demolition of existing structures and construction of a multi-level dwelling house, front fence, swimming pool and landscaping.

 

The proposal is of such a scale that it is largely inconsistent with the controls set for this form of development under Lane Cove Local Environmental Plan 2009 and Lane Cove Development Control Plan 2010.

 

The Development application was accompanied by a Clause 4.6 written request to vary the building height control by 35.8%. The Clause 4.6 written request is considered unsatisfactory for reasons outlined in this report.

 

The Development Application is subject to other state environmental planning instruments including SEPP (Coastal Management) 2018, SREP (Sydney Harbour Catchment) 2005, SEPP (BASIX) 2004 and SEPP No. 55 – Remediation of Land. The Development Application was not accompanied by sufficient information to demonstrate compliance with the relevant provisions of each of these instruments.

 

The Development Application was notified in accordance with Council policy and eleven (11) submissions were received. The submission concerns include, but are not limited to, building height and view sharing. The submissions are addressed in the report.

 

The Development Application is reported to Panel with a recommendation for refusal.

 

2.         REASON FOR REFERRAL TO LOCAL PLANNING PANEL

 

The Lane Cove Local Planning Panel (LCLPP) is a panel of appropriately qualified people independent of Council charged with determining a range of development applications on behalf of Council. The subject Development Application is referred to the Lane Cove Local Planning Panel in accordance with the following criteria in Schedule 1 of the Section 9.1 of the Environmental Planning and Assessment Act, 1979 Planning Direction dated 30 June 2020:

 

i.    Contentious Development: More than 10 unique submissions* have been received by way of objection; and

ii.    Departure from Development Standards: Development that contravenes a development standard imposed by an environmental planning instrument by more than 10%.

 

*A unique submission means a submission which is in substance unique, distinctive and unlike any other submission. It does not mean a petition or any submission that contains the same or substantially the same text. Separate unique submissions may be made in relation to the same issue. One individual, or one household, could potentially submit multiple unique submissions.

 

3.         SUBJECT SITE

 

The site is known as No. 60 Cliff Road, Northwood (Lot 19 in DP 4424). The site contains an existing dwelling house. The site has a cross-fall of approximately 35 metres from Cliff Road to the mean high water mark. The site has generally a consistent fall with a more gradually sloping cleared section to the rear of the dwelling before falling again to Lane Cove River / Gore Creek. An aerial photograph of the site is shown in Figure 1 below and an aerial perspective in Figure 2.

 

Figure 1: Aerial Photograph (Source: Nearmap)

 

Figure 2: Aerial Perspective (Source: Nearmap)

4.         PRE-DA MEETING

 

A formal Pre-DA Meeting was held with Council staff and the applicant on 2 November 2020. The pre-DA identified issues regarding building height, number of storeys, wall height, bulk and scale, heritage impacts, drop edge beam limitations, swimming pool height, cut and fill and deck/rooftop terraces. These remain issues of concern albeit that the applicant has made minor changes to the design. The applicant insisted upon lodgment of the Development Application as the minimum information required under the Environmental Planning and Assessment Regulations 2000 was provided.

 

5.         DA ASSESSMENT HISTORY

 

Table 1 – DA Assessment History

Date

Description

13 August 2021

Development Application submitted.

 

6.         PROPOSAL

 

The Development Application is for the demolition of existing structures and construction of a multi-level dwelling house, front fence, swimming pool and landscaping. A perspective of the proposal prepared by the applicant is provided in Figure 3 below.

 

Figure 3: Proposed Perspective (Source: Dickson Rothschild)

 

A description of the proposal from Cliff Road to the rear of the site is provided in Table 2 as follows:

 

Table 2 – Description of Proposal

Part

Description

Demolition

Demolition of the existing dwelling house, swimming pool and front fence.

Front Fence

The proposal includes a front fence of variable height up to 2.4m comprising masonry and aluminium slat in-fill elements.

 

Vehicular Access and Parking

Vehicular access is proposed to the site via an existing vehicle cross-over. A driveway provides access to undercroft parking for four (4) vehicles.

 

Dwelling House – Upper Module

 

Upper Level

 

3 bedrooms, bathrooms, living area, rooftop terrace and rooftop garden.

 

Middle/Ground Level

 

3 bedrooms, bathrooms, study, terrace, open-plan living/kitchen/dining area, stair access to lower module rooftop terrace.

 

Lower Level

 

Undercroft parking area, storage and stair/lift access to upper levels.

 

Dwelling House  - Lower Module

 

Rooftop

 

Rooftop terrace and garden area.

 

Upper Level

 

Dining, living and bar area, 3 bedrooms and bathrooms.

 

Lower Level

 

Open undercroft area, outdoor dining, change facilities and swimming pool/spa.

 

Swimming Pool

 

A swimming pool/spa is proposed and integrated into the lower building module with a wet edge facing the foreshore.

 

Landscaping and Tree Removal

The proposal includes extensive landscaping however no landscape documentation package was submitted with the Development Application.

 

The proposal seeks to remove four (4) trees nominated by the applicant as exempt species.

 

 


 

7.         SECTION 4.15 ASSESSMENT

 

The following assessment is provided against the relevant provisions of Section 4.15 of the NSW Environmental Planning and Assessment Act, 1979:

 

 

7.1       Any environmental planning instrument:

 

 

7.1.1    SEPP (Coastal Management) 2018

 

The land is subject to SEPP (Coastal Management) 2018. The land is mapped as Coastal Management Area, Coastal Use Area and the rear portion of the site as within proximity to Coastal Wetlands Area. The SEPP mapping is provided in Figure 4 below. The submitted Statement of Environmental Effects addresses the broader Coastal Management Area and Coastal Use Area provisions of the SEPP but fails to address the site being within proximity to a Coastal Wetlands Area. Notwithstanding an assessment against the relevant provisions of the SEPP is provided in Table 3 below.

 

Figure 4: SEPP (Coastal Management) 2018 and Site (Source: EPlanning Spatial Viewer)

 

 

Table 3 – SEPP (Coastal Management) 2018

Clause

Provision

Proposal

Compliance

11(1) – Development on land in proximity to coastal wetlands or littoral rainforest

Development consent must not be granted to development on land identified as “proximity area for coastal wetlands” or “proximity area for littoral rainforest” on the Coastal Wetlands and Littoral Rainforests Area Map unless the consent authority is satisfied that the proposed development will not significantly impact on—

 

(a)  the biophysical, hydrological or ecological integrity of the adjacent coastal wetland or littoral rainforest, or

 

(b)  the quantity and quality of surface and ground water flows to and from the adjacent coastal wetland or littoral rainforest.

 

The Statement of Environmental Effects does not address Clause 11(1) despite the land being mapped as within proximity to a coastal wetland. The proposal includes stormwater disposal works in the identified buffer and no assessment has been provided as to the impacts on the coastal wetland from the additional surface water flows.

Not demonstrated.

Clause 13 – Development on Land within the Coastal Environment Area

 

The land is mapped within a Coastal Environment Area however Clause 13(3) states that Clause 13 does not apply to land within the Foreshores and Waterways Area within the meaning of Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005. 

 

Not Applicable.

Not Applicable.

Clause 14 – Development on Land within the Coastal Use Area

 

The land is mapped within a Coastal Use Area however clause 14(2) states that land Clause 14 does not apply to land within the Foreshores and Waterways Area within the meaning of Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005. 

 

Not Applicable.

Not Applicable.

 


 

7.1.2    SREP (Sydney Harbour Catchment) 2005

 

The land is subject to SREP (Sydney Harbour Catchment) 2005. The land is mapped as being within the Foreshores and Waterways Boundary Area and a rear portion of the site as a Wetlands Protection Area as shown in Figure 5 below. An assessment is provided in Table 4.

 

 

 

Figure 5: SREP (SHC) 2005 Maps and Site (Source: EPlanning Spatial Viewer)

 

Table 4 – SREP (Sydney Harbour Catchment) 2005

Clause

Provision

Proposal

Compliance

Part 3 – Foreshore and Waterways Area – Division 2 – Matters for Consideration

 

21 – Biodiversity, ecology and environment protection

 

The matters to be taken into consideration in relation to biodiversity, ecology and environment protection are as follows—

 

(a)  development should have a neutral or beneficial effect on the quality of water entering the waterways,

 

 

 

 

 

(b)  development should protect and enhance terrestrial and aquatic species, populations and ecological communities and, in particular, should avoid physical damage and shading of aquatic vegetation (such as seagrass, saltmarsh and algal and mangrove communities),

 

(c)  development should promote ecological connectivity between neighbouring areas of aquatic vegetation (such as seagrass, saltmarsh and algal and mangrove communities),

 

(d)  development should avoid indirect impacts on aquatic vegetation (such as changes to flow, current and wave action and changes to water quality) as a result of increased access,

 

(e)  development should protect and reinstate natural intertidal foreshore areas, natural landforms and native vegetation,

 

 

 

(f)  development should retain, rehabilitate and restore riparian land,

 

 

(g)  development on land adjoining wetlands should maintain and enhance the ecological integrity of the wetlands and, where possible, should provide a vegetative buffer to protect the wetlands,

 

 

(h)  the cumulative environmental impact of development,

 

(i)  whether sediments in the waterway adjacent to the development are contaminated, and what means will minimise their disturbance.

 

 

 

 

 

 

 

The proposal provides for excessive water flows to the absorption pit which requires relocation and reduced flows through the provision of a charged line.

 

The proposed overshadowing of Gore Creek has not been fully shown.

 

 

 

 

 

 

 

The proposal does not include works impacting connectivity of aquatic vegetation.

 

 

 

 

The proposal does not modify existing foreshore access.

 

 

 

 

 

The proposal includes works encroaching the foreshore area with little to no assessment of the vegetation impacts of this encroachment.

 

The foreshore area on the subject site is not mapped as riparian land.

 

The proposal potentially impacts the vegetative buffer through the stormwater infrastructure and swimming pool foreshore encroachment.

 

As above.

 

 

 

No known contamination.

 

 

 

 

 

 

 

 

 

 

 

Not demonstrated.

 

 

 

 

 

 

 

Not demonstrated.

 

 

 

 

 

 

 

 

 

Yes

 

 

 

 

 

 

 

Yes

 

 

 

 

 

 

 

Not demonstrated.

 

 

 

 

 

 

Yes

 

 

 

 

Not demonstrated.

 

 

 

 

 

 

 

“”

 

 

 

Yes

 

 

 

 

 

 

22 – Public access to, and use of, foreshores and waterways

 

The matters to be taken into consideration in relation to public access to, and use of, the foreshores and waterways are as follows—

 

(a)  development should maintain and improve public access to and along the foreshore, without adversely impacting on watercourses, wetlands, riparian lands or remnant vegetation,

 

(b)  development should maintain and improve public access to and from the waterways for recreational purposes (such as swimming, fishing and boating), without adversely impacting on watercourses, wetlands, riparian lands or remnant vegetation,

 

(c)  if foreshore land made available for public access is not in public ownership, development should provide appropriate tenure and management mechanisms to safeguard public access to, and public use of, that land,

 

(d)  the undesirability of boardwalks as a means of access across or along land below the mean high water mark if adequate alternative public access can otherwise be provided,

 

(e)  the need to minimise disturbance of contaminated sediments.

 

The proposal would not impact foreshore use or access.

 

 

 

 

 

 

Yes

23 – Maintenance of a working harbour

 

The matters to be taken into consideration in relation to the maintenance of a working harbour are as follows—

 

(a)  foreshore sites should be retained so as to preserve the character and functions of a working harbour, in relation to both current and future demand,

 

(b)  consideration should be given to integrating facilities for maritime activities in any development,

 

(c)  in the case of development on land that adjoins land used for industrial and commercial maritime purposes, development should be compatible with the use of the adjoining land for those purposes,

 

(d)  in the case of development for industrial and commercial maritime purposes, development should provide and maintain public access to and along the foreshore where such access does not interfere with the use of the land for those purposes.

 

The proposal would not impact maintenance of a working harbour.

Yes

24 – interrelationship of waterway and foreshore uses

 

The matters to be taken into consideration in relation to the interrelationship of waterway and foreshore uses are as follows—

 

(a)  development should promote equitable use of the waterway, including use by passive recreation craft,

 

(b)  development on foreshore land should minimise any adverse impact on the use of the waterway, including the use of the waterway for commercial and recreational uses,

 

(c)  development on foreshore land should minimise excessive congestion of traffic in the waterways or along the foreshore,

 

(d)  water-dependent land uses should have priority over other uses,

 

(e)  development should avoid conflict between the various uses in the waterways and along the foreshores.

 

The proposal does not adversely impact the intended interrelationship of waterway and foreshore uses as intended by this clause.

 

 

 

 

 

Yes

25 – Foreshore and waterways scenic quality

 

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

 

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

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

(ii)  the adjoining land, and

(iii)  the likely future character of the locality,

 

(b)  development should maintain, protect and enhance the unique visual qualities of Sydney Harbour and its islands, foreshores and tributaries,

 

 

 

 

(c)  the cumulative impact of water-based development should not detract from the character of the waterways and adjoining foreshores.

 

 

 

 

 

 

 

 

The scale of the building is excessive as detailed in this report.

 

 

 

 

 

 

The visual quality may be reduced from the waterways due to the uncharacteristic bulk of the proposed development. It is noted that no visual analysis from the water is provided.

 

N/A

 

 

 

 

 

 

 

 

 

Not demonstrated.

 

 

 

 

 

 

 

 

Not demonstrated.

 

 

 

 

 

 

 

 

N/A

26 – Maintenance, protection and enhancement of views

 

The matters to be taken into consideration in relation to the maintenance, protection and enhancement of views are as follows—

 

(a)  development should maintain, protect and enhance views (including night views) to and from Sydney Harbour,

 

(b)  development should minimise any adverse impacts on views and vistas to and from public places, landmarks and heritage items,

 

(c)  the cumulative impact of development on views should be minimised.

 

 

 

 

 

 

 

An assessment on views from Sydney Harbour has not been provided.

 

Consideration on views to and from heritage items provided later in this report.

 

 

Noted.

 

 

 

 

 

 

 

 

 

Not demonstrated.

 

 

 

Not demonstrated.

27-27B – Boat storage facilities, Floating boat platforms, Mooring pens

 

Not Applicable

Not Applicable

N/A

Part 6 – Wetlands Protection

 

Clause 63 – Matters for consideration

 

(1)  The matters referred to in this clause (together with any other relevant matters)—

 

 

(a)  are to be taken into consideration by consent authorities before granting consent to development under Part 4 of the Act, and

 

 

(b)  are to be taken into consideration by public authorities and others before they carry out activities to which Part 5 of the Act applies.

 

 

(2)  The matters to be taken into consideration in relation to any development are as follows—

 

(a)  the development should have a neutral or beneficial effect on the quality of water entering the waterways,

 

(b)  the environmental effects of the development, including effects on—

(i)  the growth of native plant communities,

(ii)  the survival of native wildlife populations,

(iii)  the provision and quality of habitats for both indigenous and migratory species,

(iv)  the surface and groundwater characteristics of the site on which the development is proposed to be carried out and of the surrounding areas, including salinity and water quality and whether the wetland ecosystems are groundwater dependent,

 

(c)  whether adequate safeguards and rehabilitation measures have been, or will be, made to protect the environment,

 

(d)  whether carrying out the development would be consistent with the principles set out in The NSW Wetlands Management Policy (as published in March 1996 by the then Department of Land and Water Conservation),

 

(e)  whether the development adequately preserves and enhances local native vegetation,

 

(f)  whether the development application adequately demonstrates—

(i)  how the direct and indirect impacts of the development will preserve and enhance wetlands, and

(ii)  how the development will preserve and enhance the continuity and integrity of the wetlands, and

(iii)  how soil erosion and siltation will be minimised both while the development is being carried out and after it is completed, and

(iv)  how appropriate on-site measures are to be implemented to ensure that the intertidal zone is kept free from pollutants arising from the development, and

(v)  that the nutrient levels in the wetlands do not increase as a consequence of the development, and

(vi)  that stands of vegetation (both terrestrial and aquatic) are protected or rehabilitated, and

(vii)  that the development minimises physical damage to aquatic ecological communities, and

(viii)  that the development does not cause physical damage to aquatic ecological communities,

 

(g)  whether conditions should be imposed on the carrying out of the development requiring the carrying out of works to preserve or enhance the value of any surrounding wetlands.

 

This clause has not been addressed in the submitted Statement of Environmental Effects.

 

Accordingly, it has not been demonstrated that a robust ecological assessment as it relates to this clause has been carried out.

 

For example, the suitability of the location and method of filtration in the stormwater disposal method has not been demonstrated.

 

The identification and protection of local native vegetation has not been carried out.

 

Matters in 63(f) including ongoing sediment, pollutant and intertidal protection is to be assessed and methods for protection and implementation detailed.

 

 

Not demonstrated.

 

7.1.3    SEPP 55 – Remediation of Land

 

The land is subject to SEPP 55 – Remediation of Land. The proposal seeks to maintain the residential use of the site. It is noted that concern has been raised around fill on the adjoining property (No. 62 Cliff Road) for the purpose of a tennis court under a separate application (Council Reference No. DA119/2017). The rear of the subject site has a levelled lawn area to the rear of the existing property that is at a similar level and in close proximity to this tennis court. It is considered that this part of the subject site, which is now proposed to be developed, would require a Preliminary Site Investigation under SEPP 55 – Remediation of Land, with specific addressing of the lawn area to the rear of the existing dwelling house. The proposal is not considered satisfactory with respect to SEPP 55 – Remediation of Land.

 

7.1.4    SEPP (BASIX) 2004

 

The proposed development is subject to SEPP (BASIX) 2004. The proposal was accompanied by a BASIX Certificate No. 1165450S. The BASIX Certificate was not submitted within 3 months of the date of issue. The Certificate date is 18 December 2020 where the application was submitted on 10 August 2021 on the Planning Portal and lodged by Council on the 13 August 2021. the BASIX Certificate is therefore invalid. Notwithstanding, assuming the BASIX Certificate could be re-issued the submitted Certificate requires a number of items to be shown on the Development Application plans as reviewed in Table 5 below. The DA plans do not show all items required to be shown. For these reasons, the Development Application is not considered to satisfy the requirements of SEPP (BASIX) 2004.

 

Table 5 – BASIX DA Plan Requirements

DA Plan Detail Required

Assessment

Compliance

Landscaping - The applicant must plant indigenous or low water use species of vegetation throughout 727.2 square metres of the site.

 

No landscaping plan accompanied the Development Application (despite in being referred to in the SEE). The Certificate nominates a total of 909m2 of garden and lawn including the foreshore area. It is difficult to understand how 727.2m2 of new planting can be achieved noting rooftop planting areas are not pervious and could not be included in the calculation.

 

No

Rainwater Tank - The applicant must install a rainwater tank of at least 5500 litres on the site. The rainwater tank must meet, and be installed in accordance with, the requirements of the applicable regulatory authorities.

 

The rainwater tank is detailed on the submitted Stormwater Management Plan.

Yes

Swimming Pool – The swimming pool must not have a volume greater than 66.4 kilolitres, be shaded and be outdoors.

 

Insufficient sectional detail has been provided to determine pool volume. Under BASIX, shaded means 80% of the pool is covered by a shading device. Less than 50% of the swimming pool is covered by the building above and no other shading device has been detailed. Therefore, the pool is not shaded.

 

No

Outdoor Spa – The spa must not have a volume greater than 11.6 kilolitres and be shaded.

 

Insufficient sectional detail has been provided to determine spa volume. Under BASIX, shaded means 80% of the spa is covered by a shading device. Less than 50% of the spa is covered by the building above and no other shading device has been detailed. Therefore, the spa is not shaded.

 

No

Thermal Assessor Stamped Plans

 

Thermal assessor stamped plans did not accompany the Development Application.

 

No

Floor and Wall Construction – The applicant must construct the floors and walls of the dwelling in accordance with the specifications listed in the table below.

 

The plans generally show compliance with this requirement.

Yes

Hot Water – The applicant must install the following hot water system in the development, or a system with a higher energy rating; gas instantaneous with a performance of 5 stars.

 

A hot water system has not been detailed on the DA plans.

No

Natural Lighting – The applicant must install a window and/or skylight in the kitchen of the dwelling and 5 bathroom(s)/toilet(s) for natural lighting.

 

Windows are provided to the kitchen and 5 bathrooms.

Yes

Alternative Energy – The applicant must install a photovoltaic system with the capacity to generate at least 5 peak kilowatts of electricity as part of the development. The applicant must connect this system into the development’s electrical system.

 

A photovoltaic system has not been detailed on the DA plans.

No

 

 

7.1.5    Lane Cove Local Environmental Plan 2009

 

7.1.5.1 Permissibility

 

The land is zoned R2 Low Density Residential under Lane Cove Local Environmental Plan 2009 as detailed in Figure 6 below.

 

Figure 6: Zoning Map (Source: LCLEP 2009)

 

The Development Application seeks approval for a dwelling house pursuant to Lane Cove Local Environmental Plan 2009. A dwelling house and dwelling is defined as follows:

 

            Dwelling house means a building containing only one dwelling.

 

            Dwelling means a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile.

 

Concern is raised that the proposal would be capable of being used as two dwellings. Specifically, the detached rear-most building contains features capable for use as a separate domicile. It is noted that at the pre-DA phase the proposal was for a dual occupancy (Attached) and the SEE states this land use was not proceeded with due to costly NCC construction requirements. However, the proposal has been meaningfully amended and the capability for use as two separate domiciles remains. Accordingly, the proposal is not considered satisfactory with respect to permissibility in Lane Cove Local Environmental Plan 2009 as it does not satisfy the definition of a dwelling house.

 

7.1.5.2 Development Standards

 

The land is mapped on the Height of Buildings Map and Floor Space Ratio Map under Lane Cove Local Environmental Plan 2009 as shown in Figure 7 and Figure 8 below.

 

Figure 7: Excerpt from Height of Building Map (Source: LCLEP 2009)

 

Figure 8: Excerpt from Floor Space Ratio Map (Source: LCLEP 2009)

 

An assessment of the proposal against the building height and floor space development standard is provided in Table 6 below.

 

Table 6 – Lane Cove Local Environmental Plan 2009 – Development Standard Compliance

Standard

Mapped Maximum

Proposed Maximum

Compliance

Floor Space Ratio

0.5:1

Applicant Assessment: 0.39:1

Council Assessment: 0.39:1

 

 

Yes

 

Building Height

9.5m

Applicant Assessment:

12.9m

Council Assessment:

12.9m

 

No, 3.4m variation (35.8%). Cl 4.6 unsatisfactory - see below.

 

 

A.        Floor Space Ratio

 

i.          Gross Floor Area

 

The submitted Architectural Drawings contain Gross Floor Area diagrams. The diagrams have been reviewed with respect to the definition of Gross Floor Area contained within Lane Cove Local Environmental Plan 2009 being:

 

gross floor area means the sum of the floor area of each floor of a building measured from the internal face of external walls, or from the internal face of walls separating the building from any other building, measured at a height of 1.4 metres above the floor,

 

and includes—

 

(a)     the area of a mezzanine, and

(b)     habitable rooms in a basement or an attic, and

(c)      any shop, auditorium, cinema, and the like, in a basement or attic,

 

but excludes—

 

(d)     any area for common vertical circulation, such as lifts and stairs, and

(e)     any basement—

(i)       storage, and

(ii)      vehicular access, loading areas, garbage and services, and

(f)       plant rooms, lift towers and other areas used exclusively for mechanical services or ducting, and

(g)     car parking to meet any requirements of the consent authority (including access to that car parking), and

(h)     any space used for the loading or unloading of goods (including access to it), and

(i)       terraces and balconies with outer walls less than 1.4 metres high, and

(j)       voids above a floor at the level of a storey or storey above.

 

The Gross Floor Area calculations are generally considered satisfactory as the garage area could be generally characterised as not enclosed by external walls from a height of 1.4m above the floor. The amenity implications of the open car parking structure are addressed separately in this report.

 

ii.         Site Area

 

Clause 4.5(4) of Lane Cove Local Environmental Plan 2009 specifies the following exclusions from site area:

 

(4) Exclusions from site area The following land must be excluded from the site area –

 

(a)  land on which the proposed development is prohibited, whether under this Plan or any other law,

 

(b)  community land or a public place (except as provided by subclause (7)).

 

The entire site is zoned R2 Low Density Residential on which dwelling houses are permitted. A submission received raises the question as to whether the land south-east of the foreshore building line mapped under Lane Cove Local Environmental Plan 2009 (see Figure 10) is excluded from the site area under Clause 4.5(4)(a) due to restrictions of the types of development allowable under Clause 6.2(2) of Lane Cove Local Environmental Plan 2009:-

 

(2)  Development consent must not be granted for development on land in the foreshore area except for the following purposes—

 

(a)  the extension, alteration or rebuilding of an existing building wholly or partly in the foreshore area,

 

(b)  the erection of a building in the foreshore area, if the levels, depth or other exceptional features of the site make it appropriate to do so,

 

(c)  development for the purposes of boat sheds, sea retaining walls, wharves, slipways, jetties, waterway access stairs, swimming pools, fences, cycleways, walking trails, picnic facilities or other recreation facilities (outdoors).

 

The clause would allow the erection of a building in the foreshore area subject to the levels, depth or other exceptional features of the site make it appropriate to do so. While the appropriateness of a building in the foreshore area is not established in this assessment as none is proposed, however given it is open to the proponent to build in the foreshore area if the pre-conditions were met, it is not an outright prohibition. Exclusion from the site area would require dwelling houses to be prohibited in the foreshore area by Clause 6.2(2) of Lane Cove Local Environmental Plan 2009. The applicant’s calculation of site area is considered satisfactory.

 

B.        Building Height

 

The maximum height of building proposed is 12.9m where a development standard of 9.5m applies to the site being a variation of 3.4m or 35.8%. The applicant has submitted a Clause 4.6 written request seeking to vary the standard. The applicant has submitted a building height plane detailing the proposed breaches as shown in Figure 9. The maximum breach is to the ‘middle module’. Breaches are proposed also to the upper pitched roof module and lower module.

 

Figure 9: Building Height Plane (Source: Dickson Rothschild)

 

 

i.          Clause 4.6 Written Request

 

Clause 4.6 of LCLEP 2009 allows exceptions to development standards.  Consent must not be granted for development that contravenes a development standard unless the consent authority has considered and agrees with the written request from the applicant that seeks to justify the contravention of the development standard. This written request must demonstrate compliance with the relevant provisions of Clause 4.6 of LCLEP 2009.  These matters are discussed below:

 

Written request provided by the applicant

 

The applicant provided a written request seeking a variation to the development standard with the lodged (and amended) application.  The written request is for a 12.9m maximum building height where the development standard prescribes a maximum of 9.5m.

 

Under Clause 4.6(3) the applicant is required to demonstrate:

 

(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.

 

i.        Whether compliance with the development standard would be unreasonable or unnecessary in the circumstances of the case.

 

The Clause 4.6 written request states that it is unreasonable or unnecessary to require strict compliance with the development standard for the following reasons:

 

·    In Wehbe v Pittwater Council (2007) NSW LEC 827 established that a means to demonstrate unreasonable or unnecessary includes that ‘the objectives of the standard are achieved notwithstanding non-compliance with the standard’.

 

·    Compliance with the objectives of Clause 4.3 – Building Height, is addressed below (in the public interest test) including a consideration of the applicant’s view on the objectives being met. It is not considered that it has been demonstrated that the objectives of the standard have been met.

 

·    Given the proposal is not considered to comply with the objectives of the standard, it has not been demonstrated that compliance with the standard is unreasonable or unnecessary in the circumstances of the case.

 

The Clause 4.6 written request does not demonstrate that compliance with the development standard would be unreasonable or unnecessary and accordingly does not satisfy Clause 4.6(3)(a) of Lane Cove Local Environmental Plan 2009.

 

Comment:

 

ii.       Environmental planning grounds to justifying contravening the development standard.

 

The decision in Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 demonstrates that the requirement in Clause 4.6(3)(b) of the LEP to justify there are sufficient environmental planning grounds for the variation, requires identification of grounds 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.

 

The Clause 4.6 written request states the following environmental planning grounds (summarised):

 

·    It is not practical or economic to provide a development that responds to the topography of the site to comply with the height at all locations.

·    The breach promotes the orderly and economic development of the land to provide the permissible FSR.

·    The breach is the result of steep topographical drops at specific points on the site.

·    There is no GFA located above the height limit.

·    The building presents predominantly as 2 storeys.

·    The building design seeks to limit excavation at the more sensitive areas of the sloping site.

·    The proposed height would achieve view sharing for the neighbouring properties.

·    The breach would not give rise to adverse environmental or amenity impacts on neighbouring properties.

·    The proposal provides for larger than required setbacks, breaks in built-form and landscaped side setback areas.

·    The breach is located away from the street frontage and the development is compatible with the streetscape.

·    The site fits within the band of existing development and has a similar visual impact to the concentration of built form to the east of the subject site.

 

Comment:

 

The proposed height breach to the pitched roof section of the dwelling house is minimal and could be readily made to comply through an amended pitched roof.

 

The more significant height breaches occur in the middle and lower pavilions/modules. These proposed height breaches are largely the result of large undercroft areas setting a high-level for the swimming pool and parking levels, the large open-sided (non-GFA) swimming pool and parking levels themselves and the then suspended residential levels above. The achievement of GFA could be realised closer to ground level (Existing) if it were not for the raised and large open areas in the middle and lower ‘pavilions’ (or modules). The height could be reasonably made to comply if these areas of parking and private open space were made to be more commensurate with Council controls (a single car space is required for dwelling houses) and located outside the building platform.

 

The existing dwelling house splays at the point of steepest topographical change to be responsive to the topography of the site. The proposed dwelling design rather than responding to the key topographical changes, builds out over these areas, resulting in the proposed height breaches. The dwelling house does not step back from the boundary at the point of the maximum height breach and would result in unacceptable visual impacts to the heritage item at No. 62 Cliff Road, Northwood.

 

The environmental planning grounds provided to justify the height breach are not considered to outweigh the environmental planning grounds to maintain the development standard in this instance.

 

The environmental planning grounds put forward in the Clause 4.6 written request are not considered to satisfy Clause 4.6(3)(b) of Lane Cove Local Environmental Plan 2009.

 

iii.      Consistent with the zone objectives and objectives of the development standard.

 

Development consent cannot be granted to vary a development standard unless a consent authority is satisfied that the proposed development would be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out. An assessment against the objectives of building height and the R2 Low Density Residential zone contained within LCLEP 2009 are provided as follows:

 

Height of Building Objectives

 

Clause 4.3 (1) provides the following objectives:-

 

(a)  to ensure development allows for reasonable solar access to existing buildings and public areas;

 

Comment: The applicant has provided detailed solar analysis to demonstrate compliance with the DCP solar access provisions (for No. 62 Cliff Road) as a means to demonstrate reasonable solar access to existing buildings is provided. The proposed height breaches would not result in solar access non-compliance to no. 62 Cliff Road based on an assessment against the DCP. The reasonableness however of the impact requires consideration of the reasonableness of the structure causing the impact. As discussed above, the 12.9m structure shadowing No. 62 Cliff Road provides only for a single residential level and is largely the result of a 5m undercroft area and large open-sided car park area not commensurate with that anticipated for dwelling houses. The development, and breach in particular, is not considered to allow for reasonable solar access.

 

(b)  to ensure that privacy and visual impacts of development on neighbouring properties, particularly where zones meet, are reasonable;

 

Comment: The applicant has argued that suitable privacy measures and landscaping is proposed. The applicant also states that the visual impact is reasonable to 56A, 56B and 58 Cliff Road. The submitted Clause 4.6 written request in addressing this objective does not address the visual impact on No. 62 Cliff Road which interfaces with the maximum height breaches.  It is considered that the limited side setbacks at the point of the maximum height breach, would result in unacceptable visual impacts on No. 62 Cliff Road.

 

(c)  to seek alternative design solutions in order to maximise the potential sunlight for the public domain; and

 

Comment: Clarification is required as to whether the proposal would overshadow the inter-tidal area to the south-east of the site.

 

(d)  to relate development to topography

 

Comment: The applicant has sought to argue the proposal provides three stepping pavilions as a reasonable response to site topography. Each pavilion in itself is the scale of typical dwelling house and it is not uncommon to see steps within the slab of a dwelling house. Accordingly, the argument that further steps should not be provided within each pavilion is not considered satisfactory. The proposed development could reasonably better relate to the topography of the site. Further reduction of the undercroft height / finished floor level, steps within each pavilion, a reduction in excavation and stepping of the building to be situated outside of steep topographical changes are considered reasonably measures to reduce the height of building.

 

R2 Low Density Residential Zone Objectives

 

The R2 Low Density Residential Zone objectives are as follows:

 

·   To provide for the housing needs of the community within a low density residential environment.

 

Comment: The proposed dwelling house is not commensurate with the low-density residential environment in which it is proposed to be situated.

 

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

 

Comment: N/A

 

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

 

Comment: It is considered that the amenity of the area would be adversely impacted by the proposed height breaches as outlined in this report.

 

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

 

Comment: No visual assessment has been provided from the waterway particularly due south.

 

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

 

Comment: A landscape plan has not been submitted, the impacts on the foreshore vegetation area have not been adequately assessed or demonstrated as being reasonable, the required BASIX planting has not been detailed, and the tree retention/removal is not able to be assessed with the information provided in the submitted arborist report.

 

In accordance with the above, the development does not comply with the Lane Cove Local Environmental Plan 2009 objectives for the Height of Buildings standard or the R2 Low Density Residential zone and is therefore not in the public interest.

 

iv.        Concurrence of the Director General.

 

The Local Planning Panel can assume concurrence for exceptions to development standards where the variation to the development standard is greater than 10%.  As the proposal is referred to the Local Planning Panel for determination; concurrence is taken to be assumed.

 

v.         Conclusion

 

The objectives of Clause 4.6 are to provide an appropriate degree of flexibility in applying certain development standards and to achieve better outcomes for and from development by allowing flexibility in particular circumstances. The variation to the height standard of LCLEP 2009 is not well-justified in this instance.  There are insufficient environmental planning grounds and the objectives of the standard are not met. The development does not satisfy the objectives and the criteria outlined in clause 4.6. As such, the variation is not considered satisfactory or in the public interest.

 

7.1.5.3 Other Considerations

 

Table 7 – Lane Cove Local Environmental Plan 2009 – Other Relevant Provisions

Provision

Assessment

Clause 6.2 - Foreshore Building Line

The land is traversed by the foreshore building line mapped under LCLEP 2009 as shown in Figure 10 below. The proposed swimming pool encroaches into the foreshore building line and the submitted Statement of Environmental Effects does not identify or address this encroachment.

 

Figure 10: Foreshore Building Line (Pink) (Source: LCLEP 2009)

 

Clause 6.2 of LCLEP 2009 states the following:

 

6.2   Foreshore building line

 

(1)  The objective of this clause is to ensure that development in the foreshore area will not impact on natural foreshore processes or affect the significance and amenity of the area.

 

(2)  Development consent must not be granted for development on land in the foreshore area except for the following purposes—

(a)  the extension, alteration or rebuilding of an existing building wholly or partly in the foreshore area,

(b)  the erection of a building in the foreshore area, if the levels, depth or other exceptional features of the site make it appropriate to do so,

(c)  development for the purposes of boat sheds, sea retaining walls, wharves, slipways, jetties, waterway access stairs, swimming pools, fences, cycleways, walking trails, picnic facilities or other recreation facilities (outdoors).

 

(3)  Development consent must not be granted under subclause (2) unless the consent authority is satisfied that—

(a)  the development will contribute to achieving the objectives for the zone in which the land is located, and

(b)  the appearance of any proposed structure, from both the waterway and adjacent foreshore areas, will be compatible with the surrounding area, and

(c)  the development will not cause environmental harm such as—

(i)  pollution or siltation of the waterway, or

(ii)  an adverse effect on surrounding uses, marine habitat, wetland areas, flora or fauna habitats, or

(iii)  an adverse effect on drainage patterns, and

(d)  the development will not cause congestion of, or generate conflicts between, people using open space areas or the waterway, and

(e)  opportunities to provide continuous public access along the foreshore and to the waterway will not be compromised, and

(f)  any historic, scientific, cultural, social, archaeological, architectural, natural or aesthetic significance of the land on which the development is to be carried out and of surrounding land will be maintained, and

(g)  in the case of development for the alteration or rebuilding of an existing building wholly or partly in the foreshore area, the alteration or rebuilding will not have an adverse impact on the amenity or aesthetic appearance of the foreshore, and

(h)  sea level rise and change of flooding patterns as a result of climate change have been considered.

 

Comment: Clause 6.2(2)(c) allows for the construction of swimming pools within the foreshore area subject to an assessment against Clause 6.2(3). Concern is raised that the pool structure appearance would be incompatible from the waterway given its height (Clause 6.2(3)(b) and that no flora or fauna assessment is provided for the area proposed to be impacted (Clause 6.2(3)(c). Further, it is considered that the stormwater absorption pit should be located outside of the foreshore area to minimise infrastructure within this zone. Accordingly, the consent authority cannot be satisfied the proposal addresses Clause 6.2 of LCLEP 2009.

 

Clause 6.1 - Acid Sulfate Soils

The land is mapped as containing Class 5 acid sulfate soils on the Acid Sulfate Soils map under LCLEP 2009 as shown in Figure 11 below. LCLEP 2009 states that the works subject to consideration under this clause are

 

Works within 500 metres of adjacent Class 1, 2, 3 or 4 land that is below 5 metres Australian Height Datum and by which the water table is likely to be lowered below 1 metre Australian Height Datum on adjacent Class 1, 2, 3 or 4 land.

 

The submitted Statement of Environmental Effects does not contain a statement of compliance. Further information is required in this regard. It has not been demonstrated Clause 6.1 of LCLEP 2009 has been met.

 

Figure 11: Acid Sulfate Soils Map (Source: LCLEP 2009)

 

Clause 6.1A - Earthworks

The proposal is subject to the provisions of Clause 6.1A – Earthworks under LCLEP 2009 which states:

 

6.1A Earthworks

 

(1)  The objectives of this clause are as follows—

(a)  to ensure that earthworks for which development consent is required will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land,

(b)  to allow earthworks of a minor nature without requiring separate development consent.

 

(2)  Development consent is required for earthworks unless—

(a)  the work is exempt development under this Plan or another applicable environmental planning instrument, or

(b)  the work is ancillary to other development for which development consent has been given.

 

(3)  Before granting development consent for earthworks, the consent authority must consider the following matters—

(a)  the likely disruption of, or any detrimental effect on, existing drainage patterns and soil stability in the locality,

(b)  the effect of the proposed development on the likely future use or redevelopment of the land,

(c)  the quality of the fill or the soil to be excavated, or both,

(d)  the effect of the proposed development on the existing and likely amenity of adjoining properties,

(e)  the source of any fill material and the destination of any excavated material,

(f)  the likelihood of disturbing relics,

(g)  the proximity to and potential for adverse impacts on any watercourse, drinking water catchment or environmentally sensitive area.

 

The proposal includes up to 4m excavation and an unclear amount of fill. With the absence of geotechnical assessment it is unclear how the proposal would meet this provision. The proposal lacks information to determine compliance with Clause 6.1A – Earthworks of LCLEP 2009, and in any event is considered excessive with respect the objectives of the cut and fill provisions contained within LCDCP 2010.

 

Clause 5.10(5) - Heritage Conservation

The proposal is subject to Clause 5.10 of LCLEP 2009 due to the land being within the vicinity of a number of local heritage items. Clause 5.10(5) states the following:

 

(5) Heritage assessment The consent authority may, before granting consent to any development—

(a)  on land on which a heritage item is located, or

(b)  on land that is within a heritage conservation area, or

(c)  on land that is within the vicinity of land referred to in paragraph (a) or (b), require a heritage management document to be prepared that assesses the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area concerned.

 

Figure 12: Heritage Map (Source: LCLEP 2009)

 

 

The Development Application was accompanied by a Heritage Impact Statement. Council’s Heritage Advisor has reviewed the HIS and has concluded that the development as proposed would have unacceptable impact on the adjacent heritage item (62 Cliff Road). The heritage assessment is expanded upon in the referral section of this report. Accordingly, the proposal is not considered to satisfy Clause 5.10(5) of LCLEP 2009.

 

Clause 5.10(8) – Aboriginal Heritage

There are identified sites of potential Aboriginal Heritage significance within 100 metres of the site. The applicant has not provided any form of assessment or dialogue with the Aboriginal Heritage Office or Aboriginal land owners and as such compliance with Clause 5.10(8) of LCLEP 2009 has not been demonstrated.

 

 

 

7.2        Any proposed instrument (Draft LEP, Planning Proposal)

 

 

7.2.1    Draft Environment SEPP

 

The Draft Environment SEPP seeks to consolidate a number of existing environmental planning instruments including SEPP 55 – Remediation of Land. The Draft SEPP was subject to public exhibition between 31 January and 13 April 2018. The new draft measures primarily relate to scenarios where more complex remediation/ongoing management is required, and where the certification of remediation works is undertaken as development not requiring consent. While the Draft does consider introducing planning guidelines for the assessment/preparation of site investigations, the shortcomings of the DSI are made with respect to the existing instrument. The proposal is not any further inconsistent with the Draft Environment SEPP.

 

 

7.3       Any development control plan

 

 

7.3.1    Lane Cove Development Control Plan 2010 – Dwelling House

 

Table 8 – LCDCP 2010 - Dwelling House – Table of Compliance

Part

Control

Proposed

Complies

Front setback (min)

 

Consistent with area or 7.5m

Building line: 8-8.3m

Articulation: 6.5m

 

No, articulation (entry portico to be setback to 7.0m to comply with maximum 500mm articulation element).

 

Side setback (min)

 

1200mm single storey

1500mm two storey

1.5m

Yes

Rear setback (min)

 

<1000m²: 8m or 25%

>1000m²: 10m or 35%

35%, noting encroaching elements are limited to the swimming pool and spa. Appropriateness of these structures addressed below.

Yes

 

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

7.0m

 

12.9m

No, see assessment below.

 

Maximum Ridge height

9.5m

Flat roof design.

N/A

Undercroft height (max)

1.0m

5m

No, see assessment below.

 

Number of Storeys (max)

2

2

Yes

Maximum Number of Storeys in Elevation Profile

3

4-5

No, see assessment below.

 

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

35%

 

 

 

Achieved by way of the 35% rear setback plus ancillary areas.

Yes

 

Foreshore Building Line (min)

Proposal passes the 1st test as is appropriate in relation to 54 and 56A Cliff Road.

 

The proposal does not pass the 2nd test as the swimming pool and potentially dwelling house is within 2m of the escarpment edge and is not close to natural ground level.

 

Appropriate in relation to 54 and 56A Cliff Road.

 

No, see assessment below.

 

Cut and Fill (max)

1m

4m

No, see assessment below.

 

Solar Access

 

3 hrs as per DCP.

 

No / Yes

 

Provide for view sharing

See view assessment in submission table.

See view assessment in submission table.

No, see assessment below.

Heritage Conservation

See heritage referral assessment.

See heritage referral assessment.

No, see assessment below.

Deck/Balcony depth (max)

3m

 

Up to 9.5m

No, see assessment below.

Rooftop Terraces

No rooftop terraces allowed.

The proposal provides 2 rooftop terraces.

No, see assessment below.

Private open space

 

24 m² (min)

4m minimum depth

Provided.

Yes

 

Off-street spaces (min)

2

4

Yes

Driveway width

3m at the lot boundary

Consistent with existing.

Yes

% of Allotment Width (garages & carports)

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

3.7m

Yes

 

Pool Setback to Neighbour’s House (min)

3m to waterline

 

Complies

Yes

 

Pool Height (max)

(steeply sloping sites)

1.0m

1.8m   

4.5m to 7.5m above ground level (Existing)

No, see assessment below.

 

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

Coping to be set back at a ratio of 1:1

 

4.5m-7.5m setback required – 1.5m provided.

No, see assessment below.

 

Front fence height (max)

 

Solid: 900mm

Lightweight:    1.2m

2.4m adjoining 62 Cliff Road.

No, see assessment below.

 

Front fence setback from front boundary if > 1.2m

1m

 

No setback provided.

No, see assessment below.

 

Side and rear fences

1.8m

Not proposed.

N/A

 

7.3.1.1 Variations

 

The following section of the report addresses the proposed variations to the prescriptive DCP measures sought to be varied having regard to the applicant’s submitted justification and the objectives of the prescriptive measure sought to be varied:

 

i. Front Setback – The two storey front portico encroaches the articulation zone by 500mm contrary to Part C1.3(d) of LCDCP 2010. The front portico could be readily set back a further 500mm to comply and provide additional visual curtilage to the adjoining heritage item.

 

ii. Wall Height – Part C1.7.1(a) stipulates a maximum wall height of 7.0m where a wall height of 12.3m or 12.9m inclusive of a 600mm parapet, being a variation of 5.9m or 84.2% The applicant has sought to justify the variation on the grounds of the existing wall height (10.8m) and the provision of green roofs improving views upslope and reducing heat effects. The existing wall height is set back further from the boundary and splayed, and a green roof can be provided at a compliant level. The submitted justification is not considered adequate. The submitted justification also does not adequately address the objectives of Part C1.7.1 which seek to reinforce the typical bulk and scale and to minimise impacts on adjoining properties. The wall height of 12.9m is for a single residential level that is exacerbated in its height through a large undercroft and a significant raised parking platform. The variation to wall height could be reduced through the provision of a smaller parking level, pulling the building back from the southern boundary at the point of the variation, and generally reducing the bulk and scale of the building proposed.  

 

iii. Undercroft Height – Part C1.7.1(b) stipulates a maximum undercroft height of 1.0m where a 5.0m undercroft is proposed. Excessive undercrofts are provided under the parking area and adjacent to, and under the proposed swimming pool. The existing dwelling house has a splay to avoid excessive undercroft height, where the subject proposed dwelling seeks to extend out a parking slab through a large pier to utilise this area. The resultant impacts are that there is a significant large and unsightly undercroft area that would impact the amenity of the adjoining heritage item at No. 62 Cliff Road. The applicant’s justification that the undercroft area remains open (and not filled) is insufficient justification, given the poor built-form outcome of an open undercroft area. The proposed dwelling house should be stepped back from the southern boundary to more closely follow the topography of the site.

 

iv. Maximum Number of Storeys in Elevation – Part C1.7.1(e) stipulates a maximum number of 3 storeys in appearance (in elevation) where the proposal provides up to 5 storeys in appearance (in elevation) from the foreshore as can be seen in the submitted south-east elevation drawing (four full storeys and two half storeys) as shown in Figure 13. In essence this limits any split-level dwelling house to two x two storey modules as per Figure 14 below (right) to give a three storey appearance. The proposal provides three x two storey modules, two modules which are more than 1 metre out of the ground on the low-side of each module.

 

Figure 13: Proposed South-East Elevation Showing 5 Storey Appearance

 

Figure 14: DCP Diagram (Top) and Proposed Section (Bottom)

 

v. Foreshore Building Line (2nd Test) – The proposal provides insufficient information to establish the top of escarpment. Under Part B5.1.3-4 dwelling houses are required to be setback 2m from the top of escarpment and swimming pools are required to be situated close to ground level (Existing) where forward of the escarpment setback line. The sectional drawings appear to indicate the dwelling structure within 2m of the top of escarpment and the swimming pool as being from 4.5m to 7.5m above ground level and the variation has not been addressed or justified.

 

vi. Cut and Fill – Part C1.6(d) limits excavation to 1m at any point on the site unless it is demonstrated that the site’s slope is too steep to reasonably construct a 2 storey dwelling with this extent of excavation. The proposal includes up to 4m cut for basement access from a raise car parking area. The applicant has sought to justify the additional cut on the basis of a general statement about compliance with the objectives and the site already being ‘highly modified’. The proposed excavation is not necessary and is predicated on parking in excess of DCP controls being provided at grade. Access to the dwelling house from the parking area could readily be located more centrally to avoid the proposed excavation toward the front of the house (see the left-hand side of the proposed section in Figure 14 above). The excavation is beyond what is reasonably necessary and is therefore considered unsatisfactory.

 

vii. Deck Depth – Part C1.8.2(c) limits balconies greater than 1m above ground level (Existing) to 3m in depth. The proposal includes two balconies (in addition to the rooftop terraces addressed below) that exceed the maximum 3m depth. The decks include the significant raised pool deck and surrounds, and a side facing deck above the proposed driveway. Both decks provide unacceptable viewing platforms that would reduce the amenity of adjoining properties due to loss of visual privacy contrary to objective 2 and 3 of the DCP. The applicant does not identify or address the variations. It is also noted that the raised car parking platform is essentially an open deck and would sit up to 5m in height over No. 62 Cliff Road with minimal acoustic and visual separation.

 

viii. Rooftop Terraces – Part C1.8.2(b) prohibits roof terraces and decks above the upper storey. The proposal includes two rooftop terraces which are not supported. The applicant’s justification that because there is a first floor to Cliff Road, any subsequent and lower module is not classified as a ‘rooftop’, is not supported.

 

ix. Swimming Pool – Part C1.10.1 provides controls relating to limiting the height of swimming pools on sloping sights to no more than 1.8m above ground level (Existing). The proposed swimming pool is between 4.5m-7.5m above ground level (Existing) and is not setback at a ratio of 1:1 from the adjoining property. The applicant has not identified or submitted any justification relating to the proposed swimming pool height variation.

 

x. Front Fence – The proposal includes a front fence design up to 2.4m in height solid masonry adjacent to No. 62 Cliff Road in non-compliance with Part C1.4 of LCDCP 2010. The applicant has not identified or submitted any justification relating to the proposed fence height variation.

 

7.3.2    Lane Cove Development Control Plan 2010 – Other Sections

 

The other relevant sections of Lane Cove Development Control Plan 2010 have been addressed through referrals as outlined in the following table:

 

Table 9 - Referrals

Referral

DCP

Comment

Landscaping

 

Part J – Landscaping

Unsatisfactory – The proposal was not accompanied by a landscape plan despite the DA being located within a foreshore area and a landscaping plan being required by Part J - Landscaping.

 

Tree Preservation

 

Part J – Landscaping

Unsatisfactory - Arborist report has not been updated to address retention of the Port Jackson Fig Tree.

 

Further, there is insufficient information presented in the Arborist report to make a complete assessment of the proposal. The report identified development impacts within the Structural Root Zones of several trees including trees 3, 6 and 7 which, in accordance with Australian Standard 4970 Protection of Trees on Development Sites (2009) has the potential to impact the health and stability of the trees. The report does not provide the exact percentages of encroachment as part of a discussion, so it is not clear if the mitigation options would be sufficient to retain the trees in a viable condition.

 

The Arborist report has not assessed the impacts of the proposed stormwater that is proposed within the Tree Protection Zones and Structural Root Zones of multiple trees identified for retention. The stormwater also appears to distribute into the dense vegetation top the rear of the site that has not been assessed in the report.

 

In conclusion, it is not clear if the trees proposed to be retained would remain in a viable condition under the proposal. At this stage it is not possible to make a determination due to insufficient information provided.

 

Development Engineer

 

Part O – Stormwater Management

Unsatisfactory – The submitted stormwater plan is considered unsatisfactory for the following reasons:

 

- The stormwater plan has not been amended to reflect the updated architectural design.

- The concept design conveys all the stormwater to the absorption pit when there is an opportunity to utilise a charged line system.

- The absorption pit is located in the foreshore area and the ecological impact of its location has not been addressed.

 

Heritage

Part B9 – Heritage and Clause 5.10 of LCLEP 2009.

Unsatisfactory – It is considered that the development as proposed would have unacceptable impact on the adjacent heritage item. The current proposal is essentially similar to the pre-DA version with respect to potential impact on the neighbouring heritage item at 62 Cliff Road. The heritage advisors advice provided at  the pre-DA Meeting on 2/11/20  included the following issues which have not been adequately addressed with the current proposal:

 

 • The unbroken and unarticulated façade of the proposed design along the side boundary adjacent to No. 62 Cliff Road (setback generally 1.5m for a length of 65m) reads as a commercial scale development and would have unsatisfactory visual impacts on the heritage item.

 

Comment:

 

In spite of the large area of the site, the setback to the southern boundary remains at 1.5 metres. There should be greater setback to the rear extension of at least 2.5 metres and to the lower dwelling module of at least 3.5 metres.

The massing and wall areas to the south elevation are excessive. Opportunities should be explored to further articulate the window openings and wall finishes to the rear extension and the lower dwelling module. It is acknowledged however, that the stepping of the rear roof terrace, has mitigated this impact.

 

• Consideration should particularly be given to how the proposal can maintain the rear-facing outlook of No. 62 Cliff Road by reducing the proximity of the lower building module.

 

Comment;

 

As above, the setbacks of the lower dwelling modules from the southern boundary should be increased to reduce impact on the heritage item.

 

 

 • .................to increase the articulation of the south side of the development.

 

Comment:

 

There has been minimal attempt to break up the massing of the building elements.

 

• The massing of the entire development could be mitigated by cranking the lower building element to align its axis parallel to the northern boundary, thereby increasing the distance from the southern boundary.

 

Comment

 

The setback from the southern boundary remains unchanged at 1.5 metres for the entire length of the building.

 

Planner Comment

 

Further to the above an assessment of views from the heritage item dwelling is not provided despite it being stated as having being assessed in the heritage impact statement.

 

 


 

7.4       The likely impacts of that development, including environmental impacts on both the             natural and built environments, and social and economic impacts in the locality

 

 

The impacts on both the natural and built environments of the locality have been considered and addressed in the report and are unsatisfactory.

 

 

7.5       The suitability of the site for the development

 

 

The proposed development does not respond appropriately to the site constraints and therefore the site is not suitable for the development.

 

 

7.6       Any submissions made in accordance with this Act or the regulations

 

 

The proposed development was notified in accordance with Council policy and eleven (11) submissions were received. The submissions main points are summarised and addressed Table 10 and Table 11 as follows:

 

 

 

Table 10 – Summary of Submissions

Concern

Comment

Building Height – Concern in relation to the building height impacts on views to, from and across the site.

 

A more detailed consideration of view sharing is provided below (in Table 11). The concerns in general regarding building height are shared as detailed in this report.

 

Foreshore Building Line / Escarpment – Concern that the building extends beyond and above the foreshore building line / escarpment resulting in ecological and visual impacts.

 

The concerns relating to foreshore building line and escarpment setbacks are addressed in this report.

Floor Space Ratio – The calculation should exclude the foreshore area.

 

The concerns relating to FSR calculation and whether or not the foreshore area is to be included is addressed in this report.

 

Stormwater Location – Concern regarding the stormwater location within the foreshore area.

 

The concerns relating to stormwater disposal within the foreshore area are shared and addressed in this report.

 

Bushland Buffer – A 10 metre buffer should be provided from the escarpment in accordance with LCDCP 2010 Part H – Bushland Protection.

 

The site is not identified on the DCP Map: Land Adjoining Bushland and therefore in accordance with Clause H.3, it does not apply to the site. Notwithstanding, other instruments do require further ecological and setback considerations which are addressed in this report.

 

Landscaping Plan – No landscaping plan is available for public viewing.

 

It is noted the SEE and architectural plans includes reference to landscaping plans. However, no landscaping plans were submitted for assessment with the Development Application.

 

Visual Impact on No. 62 Cliff Road – Concern is raised that the proposal would visually overwhelm the property and the height breach is not reasonable.

The concern is shared and addressed in the report. The photomontage provided in the submission (prepared by the applicant) is instructive as to the visual impact and is provided in Figure 15 below. The elevational view is provided in Figure 14 in the report.

 

Visual and Acoustic Privacy – Concerns regarding the rooftop terraces actual use and the location of raised open deck areas and their potential impacts on the visual privacy of adjoining properties to both side boundaries.

 

While it is considered the dwelling house provides suitable privacy to internal areas, the proposed outdoor recreation areas, open-sided parking areas, rooftop terraces and decks are considered unacceptable in their potential visual and acoustic privacy impacts as outlined in this report.

 

Misleading Photomontage – The photomontage includes non-existent vegetation/trees to mask visual impact.

 

This is noted. The photomontage has not been used as the basis to assess visual impact or privacy.

Rooftop Planting Depths – The required rooftop planting depths would increase building height and the bulk and scale of the proposal.

 

This noted. The building height is proposed to be refused on other grounds based on the nominated height, any actual increase to the height would only add to this recommendation.

 

Number of Storeys – Concern that the northern and southern pavilions are most appropriately characterised as three storeys.

 

This concern is acknowledged and addressed through other non-compliances with LCDCP 2010 in this report, which as proposed, do result in a dwelling house larger than the intended two storey form (i.e. undercroft height, excavation, and wall height non-compliances).

 

Garage to be Included as GFA – The proposed garage appears to have an allowance for up to 12 cars and should only be allowed to discount 40 square metres from the GFA, the remainder of this area should be included.

 

A submission raises concern that the garage is not included as GFA. The definition of GFA requires it to be enclosed by an external wall. In this instance, the applicant proposes an open-sided car parking area. The open-sided car parking area is screened by louvres, but would not meet the test of being an external wall in the view of the assessing officer. Notwithstanding, the large open-sided parking area and pool area, dramatically increase the height of the proposed GFA, is unsatisfactorily elevated above ground level (Existing), and is not supported for these reasons.

 

Insufficient Documentation – A north elevation of the lower module and a southern elevation of the middle module is not provided.

 

This is acknowledged and included in the recommended reasons for refusal.

 

Use of the Lower Module – Concern is raised in relation to the use of the lower module as a separate occupancy.

 

The concern is shared and addressed in the report.

 

 

Figure 15: Visual Impact of Proposal on No. 62 Cliff Road, Northwood.

 

Table 11 – View Sharing Concerns Raised

Location / Comment

Comment

Greenwich Peninsula – Views from Greenwich Peninsula back to the site have not been detailed.

 

The general use of online real estate photos (which are at the rear of the spaces and with a wide-angel lens), incorrect identification of rooms, incompleteness of assessment from key areas in impacted properties and the absence of height poles results in their being insufficient information to determine impact in relation to view sharing. Further information would be required to assess view sharing in line with the Court adopted principles for undertaking such an assessment.  

56B Cliff Road – Views to the lower level of the bay and outlook from western windows affected. No impact assessment has been undertaken from the primary indoor living area or primary outdoor open space.

 

35 Cliff Road – Impacts should be assessed from the main living areas of this property and height poles erected.

 

58 Cliff Road – Impacts should be assessed form the main living and entertaining area of this property as well as considering a truer aspect for the upper floor lounge area. The photographs are not taken in accordance with the Court Planning Principle and it is not appropriate to rely on realestate.com.au photographs noting no access has been sought by the applicant to 58 Cliff Road to take photographs complying with the Principle.

 

 

 

 

7.7 Public Interest

 

 

The proposal is not in the public interest as it provides for an overdevelopment of the site that departs from the envisaged low-density residential character of the locality, the heritage context of surrounding sites or its prominence when viewed from the foreshore and adjacent waterways.

 

8.         Contributions

 

8.1       Section 7.11 Contributions

 

The proposal would not be leviable under the provisions of the Lane Cove Section 94 (now 7.11) Contributions Plan.

 

8.2       Special Infrastructure Contributions

 

The proposal is not subject to a Special Infrastructure Contribution Levy.

 

9.         Conclusion

 

The matters in relation to Section 4.15 of the Environmental Planning and Assessment Act 1979 have been addressed in the report.

 

The Development Application is for a single dwelling house. The proposed development is of such a scale that it is largely inconsistent with the controls set for this form of development under Lane Cove Local Environmental Plan 2009 and Lane Cove Development Control Plan 2010. The building height variation of 35.8% and wall height variation of 84.2% are demonstrative of this. The resulting impacts on the locality, adjoining properties and heritage items are considered unsatisfactory.

 

The Development Application has not demonstrated compliance with a number of other key state environmental planning instruments applying to the site including SEPP (Coastal Management) 2018, SREP (Sydney Harbour Catchment) 2005, SEPP (BASIX) 2004 and SEPP No. 55 – Remediation of Land.

 

The Development Application submitted is incomplete with information that is either missing or inconsistent with the architectural drawings submitted.

 

The Development Application is reported to the Lane Cove Local Planning Panel with a recommendation for refusal for the reasons outlined below.

 

RECOMMENDATION

 

That the Lane Cove Local Planning Panel refuse a variation to the height of building prescribed by Clause 4.3 of the Lane Cove Local Environmental Plan 2009, as it is not satisfied that the applicant’s request has adequately addressed the matters required to be demonstrated by Clause 4.6 of that Plan, and the proposed development would not be in the public interest as it is inconsistent with the objectives of that particular standard and the objectives for development within the zone.

 

That pursuant to Section 4.16(1)(b) of the Environmental Planning and Assessment Act, 1979 the Lane Cove Local Planning Panel at its meeting of 21 October 2021, exercising the functions of Council as the consent authority, refuse Development Application DA110/2021 for the demolition of existing structures and construction of a dwelling house at 60 Cliff Road, Northwood (Lot 19 in DP 4424)  for the following reasons:

 

1.         Permissibility

 

The proposal would be capable of being used as two domiciles and therefore does not comply with the definition of a dwelling house.

 

Particulars

 

a)   The Development Application was made for a single dwelling house pursuant to LCLEP 2009.

b)   Dwelling houses are permitted with consent in the R2 Low Density Residential zone.

c)   The upper and lower modules are readily capable of being used as separate domiciles accordingly the proposed development does not meet the definition of a single dwelling house.

 

2.         Building Height

 

The proposed building height does not meet the objectives of the standard or zone under LCLEP 2009.

 

Particulars

 

a)   Clause 4.3 of LCLEP applies a maximum height of building of 9.5m to the land.

b)   The proposed maximum height of building is 12.9m.

c)   The Clause 4.6 written request is considered unsatisfactory as it does not demonstrate the matters to be established under Clause 4.6(3).

d)   The height variation is not in the public interest as it does not comply with the objectives of the standard or zone.

 

3.         Wall Height

 

The wall height is not consistent with the typical bulk and scale and adversely impacts an adjoining property.

 

Particulars

 

a)   Part C1.7.1(a) of LCDCP 2010 stipulates a maximum wall height of 7.0m where a wall height of 12.3m or 12.9m inclusive of a 600mm parapet is proposed, being a variation of 5.9m or 84.2%.

b)   The wall height is resultant from a 5m undercroft, excessively large open-sided parking area and only a single usable residential level.

c)   The proposed wall height does not meet the objective of the control relating to providing a typical bulk and scale. The proposed wall height is not a typical bulk and scale for low-density residential development.

d)   The proposed wall height does not meet the objective of the control relating to minimising impacts on adjoining properties through the visual impact of the wall.

 

4.         Elevational Storeys

 

The elevational storeys when viewed from the south-east are excessive and out of character with surrounding single dwelling houses.

 

Particulars

 

a)   Part C1.7.1(e) of LCDCP 2010 stipulates a maximum number of 3 storeys in appearance (in elevation) where the proposal provides up to 5 storeys in appearance (in elevation) from the foreshore/waterways.

b)   The number of storeys is increased through the 4.5m-5.0m drop-off on the edge of both the parking pad and swimming pool and large retaining wall or undercroft areas.

c)   The elevational levels could be reduced through deleting large open-sided areas that are integrated into the built-form (pool area and surrounds, and parking area) that create additional residential levels and contribute to the exceedance in storeys. 

d)   The impact of elevational storeys could be reduced by minimising the difference between finished floor levels and ground level (existing) and responding more closely to the topography of the site.

e)   An elevational storey rise of 3 is achievable through the incorporation of (c) and (d) above.

 

5.         Earthworks / Cut and Fill

 

The extent of cut is not reasonably necessary to construct a two storey dwelling house.

 

Particulars

 

a)   Part C1.6(d) of LCDCP 2010 limits excavation to 1m at any point on the site unless it is demonstrated that the site’s slope is too steep to reasonably construct a 2 storey dwelling house with this extent of excavation.

b)   The proposal includes up to 4m of excavation.

c)   The 4m of excavation is for a large storage and lobby area adjacent to the over-sized parking pad (compared to LCDCP 2010 parking requirements).

d)   The excavation is not reasonably necessary and a design could provide vertical access and storage that did not require the extent of excavation proposed.

 

6.         Undercroft Height

 

The proposed undercroft areas are excessive in height and are the result of a design that does not adequately respond to the topography of the site.

 

Particulars

 

a)   Part C1.7.1(b) of LCDCP 2010 stipulates a maximum undercroft height of 1.0m where a 5.0m undercroft is proposed.

b)   The undercroft areas are unsightly or excessively contribute to the bulk and scale of the proposed dwelling house.

c)   The undercroft areas not supported are resultant from a development that does not follow closely enough the existing topography in relation to the setbacks of the various modules and in the setting of finished floor levels.

 

7.         Rooftop Terraces

 

Two terraces are most appropriately characterised as rooftop terraces which are prohibited and not supported.

 

Particulars

 

a)   Part C1.8.2(b) of LCDCP 2010 prohibits roof terraces and decks above the upper storey. 

b)   The characterisation of the two terraces by the applicant as not being roof terraces is not supported.

c)   In addition to the unacceptability of the proposed roof terraces as designated, the adjoining landscaping areas could be readily converted for use as part of the roof terraces, and this potential conflict should be avoided.

 

8.         Deck Depth

 

Two raised decks would result in unacceptable overlooking of adjoining properties and are not sufficiently limited in scale.

 

Particulars

 

a)   Part C1.8.2(c) of LCDCP 2010 limits balconies greater than 1m above ground level (Existing) to 3m in depth.

b)   The proposal includes two balconies (in addition to the rooftop terraces) that exceed the maximum 3m depth.

c)   The decks include the significant raised pool deck and surrounds, and a side facing deck above the proposed driveway.

d)   Both decks provide unacceptable viewing platforms that reduce the amenity of adjoining properties due to loss of visual privacy contrary to objective 2 and 3 of Part C1.8.2.

e)   The open-sided parking ‘deck’ would result in unacceptable visual, light spill and acoustic impacts to adjoining properties.

 

9.         Foreshore Setback Line (DCP)

 

The proposal does not adequately define the escarpment line and there are likely unacceptable or encroaching built-form in this zone.

 

Particulars

 

a)   Part B5.1.3-4 of LCDCP 2010 requires dwelling houses to be setback 2m from the top of an escarpment and swimming pools are required to be situated close to ground level (Existing) where forward of the escarpment setback line.

b)   The proposal includes topography characteristic of an escarpment and no detail on the escarpment line has been provided on the submitted plans.

c)   A review of the sectional details show the dwelling house potentially encroaching the 2m setback zone and the swimming pool being excessively above ground level (Existing) contrary to the provision.

d)   It cannot be determined the proposal has demonstrated compliance with Part B5.1.3-4 of LCDCP 2010.

 

10.       Heritage Item Impact

 

The proposal would have an unacceptable impact on the heritage item located at No. 62 Cliff Road, Northwood.

 

Particulars

 

a)   Clause 5.10(5) of LCLEP 2009 requires consideration of the impact on heritage items within the vicinity of development;

b)   The proposal is within the vicinity of a number of heritage items particularly at No. 62 Cliff Road.

c)   The visual impact from the excessive height, limited setbacks, building length, insufficient landscaping and overall lack of curtilage to No. 62 Cliff Road would adversely impact the heritage item.

d)   No view/outlook impact assessment from the principal heritage item (the dwelling house) is provided for No. 62 Cliff Road.

 

11.       Aboriginal Heritage

 

The applicant has not provided any aboriginal heritage assessment despite known potential sites within proximity to the subject site.

 

Particulars

 

a)   Clause 5.10(8) of LCLEP 2009 requires consideration of Aboriginal heritage impacts.

b)   The site contains known potential sites within a 100m buffer zone.

c)   Given the works in the escarpment area (swimming pool and stormwater) and rock outcrops in and around the proposed development an assessment is considered necessary.

d)   No assessment has been provided by the applicant.

 

12.       View Sharing and View Impacts

 

Insufficient information has been provided to assess view sharing and view impacts resulting from the proposed development.

 

Particulars

 

a)   There is no view analysis from the waterway directly to the south of the site.

b)   No height poles have been erected by the applicant to assess and more accurately measure impact.

c)   A significant number of submissions were received raising concern with the detail or lack of detail provided within the submitted view sharing analysis including inappropriate photograph usage, incomplete and incorrect room identification and a lack of consultation.

 

13.       Front Setback

 

The articulation element for the front portico should be pulled back to be in keeping with the envisaged articulation for dwelling houses forward of the front building line.

 

Particulars

 

a)   Part C1.3(d) of LCDCP 2010 allows for 500mm of articulation forward of the building line.

b)   The two storey front portico is setback 6.5m in lieu of 7.0m and should/could be readily reduced in scale to be keeping with the envisaged articulation extent for dwelling house development.

 

14.       Landscaping

 

Insufficient information is provided to determine compliance with LCDCP 2010 – Part J – Landscaping. The proposal was not accompanied by a landscape plan as required for development within a foreshore area pursuant to LCDCP 2010 Part J – Landscaping.

 

15.       Tree Preservation

 

Insufficient information is provided within the arborist report to assess the impact of the proposal on site and adjoining site vegetation and trees.

 

 

16.       Sustainability (BASIX)

 

SEPP (BASIX) 2004 has not been satisfied as the submitted Basix Certificate is not valid and the measures required to be indicated on the Development Application plans are not shown.

 

17.       Contamination

 

Insufficient information is provided to determine compliance with SEPP No. 55 – Remediation of Land. A Preliminary Site Investigation may be required to examine potential fill to the rear of the subject site prior to its development for residential purposes.

 

18.       Front Fence

 

The front fence is excessive in height and should be reduced in scale and stepped to provide landscaping opportunities

 

Particulars

 

a)   Part C1.4 of LCDCP 2010 stipulates a maximum height of 900mm solid fencing on a zero setback line within the front setback area.

b)   The proposal includes a front fence up to 2.4m in height adjacent to No. 62 Cliff Road.

c)   A stepped design should be provided to limit the height to 1.8m along this boundary acknowledging the reduced front setback of No. 62 Cliff Road.

d)   The front fence should be stepped back 1m where over 1.2m in height to allow for landscaping forward of larger masonry elements.

 

19.       Swimming Pool

 

The swimming pool is excessive in height and should be reduced to be closer to ground level (Existing).

 

Particulars

 

a)   Part C1.10.1 provides controls relating to limiting the height of swimming pools on sloping sights to no more than 1.8m above ground level (Existing).

b)   The proposed swimming pool is between 4.5m-7.5m above ground level (Existing) and is not setback at a ratio of 1:1 from the adjoining property.

c)   No justification is submitted by the applicant for the significant departures.

d)   The swimming pool is highly visible and detract from the foreshore and waterways area and is not supported at the height proposed.

 

20.       Foreshore Building Line (LEP)

 

The proposed development encroaches the foreshore area and does not suitably address the impacts from the encroachment.

 

Particulars

 

a)   Clause 6.2(2)(c) allows for the construction of swimming pools within the foreshore area subject to an assessment against Clause 6.2(3).

b)   The pool structure appearance would be incompatible from the waterway given its height (Clause 6.2(3)(b)).

c)   No flora or fauna assessment is provided for the area proposed to be impacted (Clause 6.2(3)(c).

d)   In lieu of a detailed assessment of the impacts, the stormwater absorption pit should be located outside of the foreshore area to minimise infrastructure within this zone.

 

21.       Coastal Management

 

Insufficient information is provided to determine compliance with SEPP (Coastal Management) 2018 in relation to works within proximity to mapped Coastal Wetlands.

 

22.       Sydney Harbour Catchment

 

Insufficient information is provided to determine compliance with SREP (Sydney Harbour Catchment) in relation to ecological impacts (associated with mapped Wetlands) and impact on views from the waterways (given no view impact analysis is provided from the waterway itself).

 

23.       Elevational Detail

 

The proposal is not accompanied by sufficient elevation detail for assessment.

 

24.       Stormwater Management

 

The stormwater management plan does not provide for adequate charged line disposal of stormwater and the ecological impacts of the absorption pit have not been determined.

 

25.       Public Interest

 

The proposal is not in the public interest as it provides for an overdevelopment of the site that departs from the envisaged low-density residential character of the locality, the heritage context of surrounding sites or its prominence when viewed from the foreshore and adjacent waterways.

 

26.       Site Suitability

 

The proposed development does not respond appropriately to the site constraints and therefore the site is not suitable for the development.

 

 

 

 

 

ATTACHMENTS:

AT‑1 View

Statement of Environmental Effects

 

Available Electronically

AT‑2 View

Clause 4.6 Variation - Height of Building

 

Available Electronically

AT‑3 View

Architectural Plans - 60 Cliff Road, Northwood - DA110/2021

 

Available Electronically

AT‑4 View

BASIX Certificate

 

Available Electronically

AT‑5 View

NatHERS Certificate - 60 Cliff Road, Northwood - DA110/2021

 

Available Electronically

AT‑6 View

Cost Estimate Report

 

Available Electronically

AT‑7 View

Online DA Checklist

 

Available Electronically

AT‑8 View

Arboricultural Impact Assessment

 

Available Electronically

AT‑9 View

Erosion and Sediment Control Plan

 

Available Electronically

AT‑10 View

Development Application Form

 

Available Electronically

AT‑11 View

Heritage Impact Statement

 

Available Electronically

AT‑12 View

Neighbour Notification and Sample Letter

 

Available Electronically

AT‑13 View

Response to Council RFI

 

Available Electronically

AT‑14 View

Visual Assessment and View Analysis

 

Available Electronically

AT‑15 View

Stormwater Management Plan

 

Available Electronically

AT‑16 View

Survey Plan

 

Available Electronically

AT‑17 View

Waste Management Form

 

Available Electronically