Agenda of Georges River Local Planning Panel (LPP)

Georges River Council – Local Planning Panel Thursday, 12 December 2019

Page 119

3. Reports and LPP Deliberations in Closed Session - 6.30pm

LPP057-19 5-11A Wyuna Street Beverley Park - DA2018/0516

(Report by Senior Development Assessment Officer)

LPP058-19 71-73 Jubilee Avenue Carlton - DA2018/0277

(Report by Senior Development Assessment Officer)

LPP059-19 89-91 Railway Parade Mortdale - DA2018/0439

(Report by Senior Development Assessment Planner)

LPP060-19 38 Hillcrest Avenue Hurstville - REV2019/0012

(Report by Senior Development Assessment Planner)

4. Confirmation of Minutes

REPORT TO GEORGES RIVER COUNCIL

LPP MEETING OF Thursday, 12 December 2019

LPP Report No	LPP057-19	Development Application No	DA2018/0516
Site Address & Ward Locality	5-11A Wyuna Street Beverley Park Kogarah Bay Ward
Proposed Development	Site consolidation, tree removal, demolition of existing structures and construction of a six (6) storey residential flat building development comprising sixty four (64) residential units with basement car parking and associated landscaping and site works
Owners	Arthur and Margaret Karas, Tommy and Helen Sau-Han Wong, Salvatore and Sara Geremia, Remo and Fiona Kay Troise and Janelle Lazos
Applicant	Simul Pty Ltd
Planner/Architect	Planner – Planning Ingenuity Architect – PBD Architects
Date Of Lodgement	28/11/2018
Submissions	33 individual submissions
Cost of Works	$21,404,847.00
Local Planning Panel Criteria	The application relates to development to which the State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development applies.
List of all relevant s.4.15 matters (formerly s79C(1)(a))	State Environmental Planning Policy No.65 – Design Quality of Residential Apartment Development, State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017, State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, Greater Metropolitan Regional Environmental Plan No.2 – Georges River Catchment, State Environmental Planning Policy No.55 – Remediation of Land, State Environmental Planning Policy (Infrastructure) 2007, Draft Evironmental State Environmental Planning Policy, Draft State Environmental Planning Policy – Remediation of Land, Kogarah Local Environmental Plan 2012, Kogarah Development Control Plan 2013, Draft Amendment to Section C2 – Medium Density Development of Kogarah DCP 2013
List all documents submitted with this report for the Panel’s consideration	Statement of Environmental Effects – Planning Ingenuity Traffic and parking Assessment – Teraffic Pty Ltd Noise Impact Assessment – Acoustic, Vibration & Noise Pty Ltd BCA Compliance Capability Report – Certified Building Solutions
Report prepared by	Senior Development Assessment Officer

Recommendation

That the application be approved in accordance with the conditions included in the report.

Summary of matters for consideration under Section 4.15

Have all recommendations in relation to relevant s4.15 matters been summarised in the Executive Summary of the assessment report?

Yes

Legislative clauses requiring consent authority satisfaction

Have relevant clauses in all applicable environmental planning instruments where the consent authority must be satisfied about a particular matter been listed, and relevant recommendations summarised, in the Executive Summary of the assessment report?

Yes

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- Clause 4.6 Statement submitted in respect to non-compliance with the height control.

Special Infrastructure Contributions

Does the DA require Special Infrastructure Contributions conditions (under s7.24)?

Not Applicable

Conditions

Have draft conditions been provided to the applicant for comment?

No, standard conditions have been attached with design changes and will be available when the report is published.

Site Plan

Development site outlined in blue

Executive Summary

Proposal

1. This development application (DA) seeks consent for the demolition of existing structures across five (5) sites, lot consolidation and the construction of a six (6) storey Residential Flat Building (RFB) comprising of a total of sixty four (64) apartments including two (2) levels of basement car parking catering for a total of 109 car parking spaces.

2. The proposal has two (2) basement car parking levels with one hundred and nine (109) residential car parking spaces and thirteen (13) residential visitor spaces. Vehicle access is provided via a two-way driveway from Wyuna Street along the eastern elevation of the site. (the site is not entirely oriented north/south, this assessment will use the references annotated by the Architect for clarity)

3. The proposal has been amended to address outstanding design issues raised by the Design Review Panel (DRP). The recent architectural amendments also address the Council’s concerns regarding the height and scale of the development and the non- compliant Floor Space Ratio (FSR). The amended plans now provide an additional communal open space area to the roof top.

4. The proposed development in its amended form now complies with the maximum FSR, however still exceeds the height control but has been amended to ensure that the non-compliance is related only to the lift core, fire stairs and roof top terrace and does not affect any habitable areas. An amended Clause 4.6 Statement has been submitted which has been assessed in detail later in this report and is considered to be well founded and in this case is recommended for supported given the nature and degree of variation that has been applied for.

5. Communal open space is provided both at ground level at the rear of the site and on the rooftop (Level 6).

Figure 1: Street elevation of the proposal

Figure 2: Eastern side elevation of the proposal

Site and Locality

6. The development site is located on the north western side of Wyuna Street, approximately 27m from its intersection with Stubbs Street. It consists of five (5) existing allotments known as 5, 7, 9, 11 and 11A Wyuna Street, Beverley Park. These sites are legally identified as Lots 10, 11 and 12 in DP7056 and Lots A and B in DP382055.

7. The consolidated site is rectangular in shape. It has a total frontage to Wyuna Street of 60.96m and a depth of 42.90m. The total site area is 2,615sqm. The land falls to the street at its north eastern corner. There is a level difference of about 2m between the north-western corner of the site and the south eastern corner.

8. Presently situated on the site are five (5) residential dwellings, consisting of two (2) single storey houses, a two (2) storey house and a single storey dual occupancy, with ancillary such as detached garages, sheds, garden beds and an inground swimming pool.

9. This entire block (surrounded by Princes Highway to the north west, Stubbs Street to the north-east, Lacey Street to the south west and Wyuna Street to the south east) has been “up-zoned” to R3 Medium Density Residential with a maximum height of 21m and a maximum Floor Space Ratio (FSR) of 2:1.

10. The adjacent residential block to the west, bounded by Princes Highway, Lacey Street, John Street and Park Road, has also been up-zoned in the same manner.

11. On the opposite side of Princes Highway to the aforementioned two (2) blocks is the Carlton strip shopping centre zoned B2 Local Centre.

12. Land on the opposite side of Wyuna Street is zoned R2 Low Density Residential and is charactered by single dwelling houses.

Zoning and Permissibility

13. The subject site is zoned R3 Medium Density Residential under the provisions of Kogarah Local Environmental Plan 2012 (KLEP 2012). The proposal involves the construction of a residential flat building which is a permissible use in the zone with development consent.

Submissions

14. The DA was publicly notified to neighbours for a period of fourteen (14) days in accordance with the Kogarah Development Control Plan 2013 (KDCP 2013). A total of twenty five (25) submissions were received raising concerns with parking and traffic congestion, privacy, design, concerns regarding the height, scale and bulk of the scheme and overlooking issues. Amended plans were submitted to Council on 29 August 2019. The amended plans were renotified between 4 September and 18 September 2019. Eight (8) additional submissions were received. A total of thirty three (33) submissions were received as a result of both notification periods. These issues are discussed in greater detail in the body of this report.

Reason for Referral to the Local Planning Panel

15. This application is referred to the Georges River Local Planning Panel for determination as the proposal relates to a Residential Flat Building and the provisions of the State Environmental Planning Policy No 65 – Design Quality of Residential Flat Development apply. It is also referred as over ten (10) unique submissions were received in response to the application.

Planning and Design Issues

16. The proposal is generally an appropriate response to the site when considered against the Design Quality Principles of State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development. Its bulk and scale is consistent with the desired future character of the area as established by the KLEP 2012 development standards for FSR and height.

17. Originally the development exceeded the 21m height limit with parts of the habitable areas encroaching within the height limit. Council expressed concern and stated that support would not be provided for any habitable spaces exceeding the control. Only ancillary structures could be considered. The Applicant has submitted an amended Clause 4.6 Statement which has been assessed in detail as part of this report and is considered to be well founded. The proposal exceeds the building height development standard of 21m that applies to the site under KLEP 2012, however this is directly related to the provision of a high quality communal open space area on the rooftop to supplement the ground level communal open space at the rear of the site which will improve its functionality and overall amenity for the units. The lift overrun, fire stairs and associated ancillary structures exceed the height control to access this communal area, however these are considered to be acceptable and will not adversely affect the amenity of adjoining properties or the streetscape.

18. The proposal is fully compliant with the maximum FSR development standard that applies to the site under KLEP 2012. The proposal is therefore consistent with the desired future building envelope and density for the site.

19. The proposal involves some minor Apartment Design Guide (ADG) building separation “design criteria” non-compliances on ground level, and levels 1 - 3. These are detailed within the ADG Compliance Table within this report. The variations are acceptable on merit, on the basis that privacy impacts can be mitigated to an appropriate degree and therefore the proposal meets the objectives of the design criteria.

Conclusion

20. The application has been assessed having regard to the Matters for Consideration under Section 4.15 of the Environmental Planning and Assessment Act 1979, the provisions of the relevant State Environmental Planning Policies, Local Environmental Plans and Development Control Plans. The proposal is an appropriate response to the up-zoning of the land in an area that is undergoing a transition to medium density housing including Residential Flat Buildings (RFB). The bulk and scale of the building has satisfactorily been resolved via good articulation, appropriate building setbacks and a mix of materiality and textures. As a result the application is recommended for approval subject to suitable conditions of consent.

Report in Full

Description of the Proposal

21. The original development proposed the demolition of existing structures and the construction of a seven storey Residential Flat Building (RFB). The amended plans submitted seek consent for the construction of a 6 storey residential flat building (RFB) containing 64 apartments. Though the building is 6 storey’s in height (plus the rooftop communal open space), its 4 storey base is emphasised with levels 5 and 6 being recessive. Refer to Figure 3 below.

Figure 3: Artist’s 3D rendition of the proposal (Source PBD Architects, 2019)

22. Further details of the proposal are as follows;

Basement 2 (split level comprising Basement 2 and 2A)

- Sixty one (61) residential car parking spaces.

- Two lift and stair lobbies

- Fifty two (52) secure storage areas that will be allocated to individual apartments.

Basement 1 (split level comprising Basement 1 and 1A)

- Forty eight (48) car parking spaces comprising of the following:

· Thirteen (13) visitors car parking spaces (one space doubles up as a car wash bay).

· Thirty five (35) residential car parking spaces (including eight (8) accessible spaces with shared zones)

- Seventeen (17) secure storage lockers.

- One (1) designated Loading Bay.

- Twenty two (22) residential bicycle parking spaces.

- Eight (8) visitors bicycle parking spaces.

- Hydrant booster and pump room.

- Switch room.

- Communication room.

- Two (2) lift and stair lobbies.

- Cleaners WC

- Two separate garbage holding rooms.

- Bulky store room adjacent to garbage holding room.

Ground Floor Plan

- The development is divided into two (2) distinct buildings with separate lobbies and lifts. Building A is located to the eastern part of the site and Building B is located on the western side of the site.

- Twelve 12 residential apartments on the ground floor as follows:

- Building A ground floor comprises the following:

· 3 x 1 bedroom apartments (one of which is an adaptable unit)

· 2 x 2 bedroom apartments (one of which is a liveable unit)

· 1 x 3 bedroom apartment

- Building B ground floor comprises the following:

· 3 x 1 bedroom apartments (one of which is an adaptable unit)

· 2 x 2 bedroom apartments (one of which is a liveable unit)

· 1 x 3 bedroom apartment

- Dual lane vehicular access from Wyuna Street located to the eastern side of the site.

- Landscaped front setback with two (2) communal residential access gates and four (4) apartments with direct private courtyard access.

Levels 1 – 3

- Twelve (12) residential apartments on each level as follows:

- Building A ground floor comprises the following:

· 1 x 1 bedroom apartments (one of which is an adaptable unit)

· 4 x 2 bedroom apartments (one of which is a liveable unit)

· 1 x 3 bedroom apartment.

· One (1) lift lobby and fire stairs.

- Building B ground floor comprises the following:

· 1 x 1 bedroom apartments (one of which is an adaptable unit)

· 4 x 2 bedroom apartments (one of which is a liveable unit)

· 1 x 3 bedroom apartment

· One (1) lift lobby and fire stairs.

Levels 4 – 5

- Eight (8) residential apartments on each level as follows:

- Building A ground floor comprises the following:

· 1 x 1 bedroom apartments

· 2 x 2 bedroom apartments

· 1 x 3 bedroom apartment

· One (1) lift lobby and fire stairs.

- Building B ground floor comprises the following:

· 1 x 1 bedroom apartments

· 2 x 2 bedroom apartments

· 1 x 3 bedroom apartment

· One (1) lift lobby and fire stairs.

- Both parts of the building are setback from the boundaries behind the podium.

Roof Plan

- Communal roof top open space area (all areas of the roof top space are accessible by both building A and B) comprising of the following:

· Approximately 356sqm of communal open space area.

· Multiple seating and outdoor eating areas both covered and uncovered.

· Accessible ramp to provide access to all parts of the roof top.

· Accessible toilet.

· BBQ facilities.

· Internally located communal garden beds.

· Perimeter planting for the majority of the perimeter of the communal open space area.

· Roof top service areas (surrounded by 1.5m high screens) for 48 air conditioning condensers.

23. The building is of a contemporary design with a flat roof and curved corner elements on the front facade. There is a good variety of external finishes such as metal cladding, textured and painted render, metal feature screens and planter box and glass balustrades.

24. The proposal involves the removal of the following seventeen (17) trees from the site, as follows:

· 5 x Mangifera indica

· 1 x Ficus carica

· 4 x Phoenix roebelenii

· 1 x Plumeria rubra

· 1 x Persea americana

· 2 x Yucca Sp

· 3 x Cupressus Sp

25. There are currently street trees located in front of 5, 7 and 9 Wyuna Street. These trees are relatively small in size and scale existing in front of the development site. The proposal will incorporate the planting of six (6) new street trees being a minimum of 45 litre in pot size as shown on the Landscape Plans. A condition of development consent has also been imposed requiring the planting of these trees.

DESCRIPTION OF THE SITE AND LOCALITY

26. The subject site is located on the north western side of Wyuna Street. The site is located about 27m from the intersection of Wyuna Street and Stubbs Street Beverley Park.

27. The subject site consists of five (5) allotments with the following legal descriptions:

· Lot 12 DP7056 (5 Wyuna Street)

· Lot 11 DP7056 (7 Wyuna Street)

· Lot 10 DP7056 (9 Wyuna Street)

· Lot B DP382055 (11 Wyuna Street)

· Lot A DP382055 (11A Wyuna Street)

28. The consolidated site is rectangular in shape. It has a total combined frontage width of 60.96m and a depth measured along both side boundaries of 42.9m. These dimensions yield a total site area of 2,615sqm.

29. The land falls to the street at its south eastern corner. There is a level difference of about 2m between the north western corner of the site and the south eastern corner.

30. 5, 7 and 9 Wyuna Street are currently occupied by one and two storey dwelling houses with driveways and various ancillary outbuildings and a swimming pool. Refer figures 4 to 6 below.

Figure 4: 5 Wyuna Street, Beverley Park

Figure 5: 7 Wyuna Street, Beverley Park

Figure 6: 9 Wyuna Street, Beverley Park

31. 11 and 11A Wyuna Street are currently occupied by an attached dual occupancy single storey brick and tile dwelling house with various attached and detached ancillary structures at the rear.

Figure 7: Existing development at 11 and 11A Wyuna Street

32. Immediately adjoining the site to the east at 1 and 3 Wyuna Street are two (2) detached dwelling houses. Land on the opposite (southern side of Wyuna Street is zoned R2 Low Density Residential and is characterised by single dwelling houses. This area is residential in nature and largely low scale in its character.

33. This entire block (surrounded by Princes Highway to the north, Stubbs Street to the east, Lacey Street to the west and the northern side of Wyuna Street) has been “up-zoned” to R3 Medium Density Residential in which residential flat buildings (RFB) are permitted to a maximum height of 21m and a maximum Floor Space Ratio (FSR) of 2:1. The adjacent block to the west, surrounded by Princes Highway, Lacey Street, John Street and Park Road, has also been up-zoned in the same manner.

34. The Georges River Local Planning Panel recently determined by way of refusal a development application for the redevelopment of the site known as 186–190 Princes Highway and 2–6 Lacey Street, Kogarah Bay (DA2018/0513) for a seven (7) storey RFB and the refurbishment of the heritage item that exists on the site. Figure 8 shows the montage of the elevation proposed to Wyuna Street.

Figure 8: South Elevation of 2- 6 Lacey Street and 186-190 Princes Highway (Source PBD Architects)

35. Adjoining this development to the west is an application currently under review by Council at 13–21 Wyuna Street, Beverley Park (DA2019/0406) for the redevelopment of the site for a six (6) storey RFB. Figure 9 shows the photomontage of the proposed elevation fronting Wyuna Street.

Figure 9: Front elevation of prosed development at 13–21 Wyuna Street (Source Shiro Architects, 2019)

36. On the opposite side of the Princes Highway to the rear of the proposed development is the Carlton strip shopping centre zoned B2 Local Centre.

37. These B2 properties encourage mixed land uses. Most recently a mixed use development was approved at 325-329 Princes Highway (DA2017/0491) (refer to figure 10 below).

Figure 10: Front elevation of the approved development at No.325-329 Princes Highway

38. Also 313-323 Princes Highway is currently under construction where the Land and Environment Court approved a six storey mixed use development with commercial premises on the ground floor (refer to figure 11 below) at this site.

Figure 11: Front elevation of the approved development at 313-323 Princes Highway

39. Properties immediately to the west of the site are generally undeveloped and contain single and two storey detached dwelling houses. The Land and Environment Court has recently approved two development applications for new six (6) and seven (7) storey RFB’s along John Street. Figure 12 and 13 below show the front façade of the approved developments within this precinct. A new seven (7) storey RFB has also been approved for 198-200 Princes Highway (DA2017/0655). The block bounded by John Street, Princes Highway, Lacey Street and Park Road has progressed further with its renewal when compared with this block, with much of the sites having the benefit of development approvals.

Figure 12: Front elevation of the approved development at 1-3 John Street, Beverley Park (DA2017/0218) (Courtesy Council Records)

Figure 13: Front elevtaion of the approved RFB at 5–9 John Street, Beverley Park (DA2017/0663) (Courtesy Council Records)

40. The immediate precinct is undergoing a process of transition and transformation to larger scale medium density residential developments and larger scale mixed use developments along Princes Highway.

State Environmental Planning Policies (SEPPs)

41. Compliance with the relevant SEPPs is summarised in the following table and discussed in further detail below it.

Table 1: Compliance with State Planning Policies

SEPP Title	Complies
Greater Metropolitan Regional Environmental Plan No 2 – Georges River Catchment	Yes
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004	Yes
State Environmental Planning Policy No 55 - Remediation of Land	Yes
State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017	Yes
State Environmental Planning Policy (Infrastructure) 2007	Yes
State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development	Yes

Greater Metropolitan Regional Environmental Plan No 2 – Georges River Catchment

42. The primary relevant aims and objectives of this plan are:

· to maintain and improve the water quality and river flows of the Georges River and its tributaries and ensure that development is managed in a manner that is in keeping with the national, State, regional and local significance of the Catchment,

· to protect and enhance the environmental quality of the Catchment for the benefit of all users through the management and use of the resources in the Catchment in an ecologically sustainable manner,

· to ensure consistency with local environmental plans and also in the delivery of the principles of ecologically sustainable development in the assessment of development within the Catchment where there is potential to impact adversely on groundwater and on the water quality and river flows within the Georges River or its tributaries,

· to establish a consistent and coordinated approach to environmental planning and assessment for land along the Georges River and its tributaries and to promote integrated catchment management policies and programs in the planning and management of the Catchment

43. The DA includes a concept stormwater design prepared by David Romanous of John Romanous and Associates Pty Ltd. All stormwater will be diverted to the street via a sub-ground OSD tank located in the front setback of the building. The application was originally referred to Council’s Engineering Services for comment. There were concerns raised in respect to the stormwater and drainage arrangement. The following comments were made;

“It is not supported to locate an OSD tank under habitable area. It will be conditioned that this part of the OSD underneath the bedroom (4.0m³) is to be deleted and may be compensated as part of the rainwater tank to the discretion of the drainage engineer”

44. Amended hydraulic plans were submitted to Council in July 2019 and referred back to Council’s Engineers for comment, who are satisfied with the stormwater drainage arrangement subject to the imposition of conditions.

45. In summary, the proposal will not contravene the aims, objectives or purpose of the Regional Plan subject to the imposition of those conditions recommended by the Development Engineer.

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

46. BASIX Certificate No. 974609M dated 23 November 2018 has been issued for the proposal and demonstrates that it meets the provisions and minimum requirements of BASIX in terms of water, thermal comfort and Energy efficiency. The architectural plans include the commitments that are required to be shown at DA stage. The proposal satisfies the requirements of the BASIX SEPP.

State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55)

47. SEPP 55 aims to promote the remediation of contaminated land in order to reduce the risk of harm to human health or any other aspect of the environment.

48. Clause 7 requires contamination and remediation to be considered in determining a DA. The consent authority must not consent to the carrying out of development on land unless it has considered whether or not the land is contaminated.

49. A review of the site history indicates that the site has been used for residential purposes since at least 1943. Residential usage is not typically associated with activities that would result in the contamination of land.

50. A Preliminary Site Investigation (PSI) Report No E24014.E01 dated 15 October 2018 prepared by eiaustralia was submitted with the application, which concludes:

“A conceptual site model (CSM) was derived for the site which identified potential contaminating sources that may have occurred and evaluated the likelihood for relevant exposure pathways to be complete. EI considers there to be a medium risk for contamination to be present on-site given fill soils of unknown origin, spills from parked vehicles, potential migration of contamination onto site from nearby properties and unknown contamination sources as the main potential sources of contamination.

Taking into account the above considerations and subject to the statement of limitation (Section 8), EI conclude that there is a medium potential for contamination to be present on site. With consideration given to the nature of the proposed land use and potential contamination risks to end users of the site, EI consider that the site can be made suitable for the proposed land use, subject to the implementation of the following recommendations:

· A Hazardous Materials Survey should be completed by a suitably qualified and experienced consultant, before commencement of demolition works, to identify any hazardous materials present within the building structure. All identified hazardous materials must be appropriately managed and to maintain worker health and safety during site construction woks; and

· Due to the presence of buildings and services onsite, EI recommends that a Detailed Site Investigation (DSI) is to be completed, after all existing site structures are demolished, to adequately characterise site soils and ground water, and to provide baseline data for evaluation of any remedial and management requirements that may be necessary to allow the site to be made suitable for the proposed development.”

51. Based on the information provided, a Detailed Site Investigation Report was required.

52. A Detailed Site Investigation Report No E24014.E02_Rev 0 dated 27 November 2019 prepared by eiaustralia was submitted to Council on 27 November 2019 which stated.

“BACKGROUND

EI Australia prepared a PSI for the site, which identified the potential for contamination to be present within soils and groundwater at the site located at 5–11A Wyuna Street, Beverley Park. The site is the location of a proposed residential flat building development.

The PSI concluded that EI considers there to be a medium risk for contamination to be present on-site given fill soils of unknown origin, spills from parked vehicles, potential migration of contamination onto site from nearby properties and unknown contamination sources as the main potential sources of contamination. The PSI recommended the following be undertaken:

CONCLUSION

A detailed site investigation report was conducted in order to assess the nature and degree of on-site contamination associated with current and former uses of the property. Based on the findings of this assessment it was concluded that:

· A previous Preliminary Site Investigation (EI PSI, 2018) conducted by EI identified there to be a medium potential for contamination to be present on-site;

· The site was free of statutory notices by the EPA;

· Based on land title history and the findings in the PSI (EI, 2018a), the site appears to have been used for residential land use from at least the 1900s onwards.

· Soil sampling and anaylsis were conducted at eight targeted test bore locations (HA1- HA8) within the accessible areas of the site down to a maximum depth of 0.7 mBGL in natural sand. Sampling regime was considered to be appropriate for preliminary investigation purposes and comprised judgemental and systematic (triangular grid) sampling patterns, with allowance for structural obstacles (e.g. existing residential dwellings);

· The sub surface layers comprised of topsoil materials, comprising dark brown to brown silty sands, underlain by pale grey and yellow sand;

· Standing water level was encountered at depth of 5.07mBGL during GME;

· Results of soil samples collected from soil test boreholes HA1 to HA8 reported concentrations of the screened heavy metals, PAHs, BTEX, TRH, OCP/OPP/PCBs and asbestos to be below the adopted human health and ecological based SILs;

· Results of groundwater samples collected from the groundwater monitor well previously installed BH1M (EI, 2018b) reported concentrations of the PAHs, BTEX, TRHs, VOCs below the adopted GILs. Concentrations of copper (2Ug/L) exceeding the adopted criteria, however concentrations were considered to be representative of background groundwater quality and presents a low human health and environment risk;

· On review of the Conceptual Site Model (CSM) developed as part of this DSI, it was concluded that the model remains valid for the proposed development.

Taking into account the above considerations and subject to the statement of limitation (Section 13), EI consider that the site is suitable for its proposed use, subject to the implementation of recommendations.

Recommendations

It is assumed that during the proposed construction of the two level basement car park which covers the majority of the site area, fill and natural soil/rock will require removal from the site. Therefore, in view of the above findings and in accordance with the NEPM2013 guidelines, it is considered that the site is suitable for the proposed residential development on completion of the following recommendations:

· Prior to site demolition, a suitably qualified and experienced consultant should be engaged to perform a Hazardous Materials Survey on existing site structures to identify potentially hazardous building products that may be released to the environment during demolition works;

· Following demolition and removal of demolition debris, a Hazardous Materials Clearance Certificate should be carried out by a suitably qualified and experience consultant;

· Sampling of soils to be removed from the site (including virgin excavated natural materials or VENM) for waste classification and offsite disposal purposes in accordance with the EPA (2014) Waste Classification Guidelines.

· Any material being imported to the site should be assessed for potential contamination in accordance with NSW EPA guidelines as being suitable for the intended use or be classified as VENM.”

53. Based on the information provided, a contingency condition has been included in the recommended conditions detailing what is required to take place should unexpected contamination be found during demolition, excavation and construction.

The report concludes that the site is suitable for the proposal and the continued residential use of the land. This conclusion is supported by Council’s Environmental Health Section who recommended appropriate conditions of consent relating to any contamination findings during demolition, excavation or construction, and that a Clearance Certificate be obtained prior to the issue of an Occupation Certificate. These conditions are included in the recommendation below.

State Environmental Planning Policy (Infrastructure) 2007

54. The aim of the Infrastructure SEPP is to facilitate the effective delivery of infrastructure across the State. The Infrastructure SEPP also examines and ensures that the acoustic performance of buildings adjoining the rail corridor or busy arterial roads is acceptable and internal amenity within apartments is reasonable given the impacts of adjoining infrastructure.

55. Clause 102 of the SEPP, “Impact of road noise or vibration on non-road development”, is relevant to this DA on the basis that the proposal involves the construction of residential accommodation on land that is generally adjacent to the road corridor of Princes Highway (having an annual average daily traffic volume exceeding 20,000 vehicles) and is likely to be adversely affected by road noise or vibration. As a result, the following provisions of Clause 102 of the SEPP are relevant:

(3) If the development is for the purposes of residential accommodation, the consent authority must not grant consent to the development unless it is satisfied that appropriate measures will be taken to ensure that the following LAeq levels are not exceeded:

(a) in any bedroom in the residential accommodation—35 dB(A) at any time between 10 pm and 7 am,

(b) anywhere else in the residential accommodation (other than a garage, kitchen, bathroom or hallway)—40 dB(A) at any time.

56. An Acoustic Report (Traffic and Environmental Noise Assessment) was submitted with the DA, dated 22 October 2018 and prepared by Acoustic, Vibration, & Noise Pty Ltd. The report addresses the provisions of the Policy with respect to achieving acoustic compliance. The report suggests a series of construction methods and materials (e.g. 6mm laminated glass in all living areas and bedrooms, with full perimeter acoustic seals).

57. Though the Acoustic Report does not explicitly state that compliant internal noise levels on the rear façade oriented towards Princes Highway are achieved only when windows are closed, this is nonetheless a reasonable conclusion to draw. The Apartment Design Guide states under Objective 4J-1 (Noise and Pollution) that achieving various design criteria (such as natural cross ventilation) may not be possible in some situations due to noise and pollution. In accordance with the NSW Department of Planning’s “Development near Busy Roads and Rail Corridors – Interim Guidelines” and relevant ventilation requirements of the BCA, mechanical ventilation would therefore be required for the noise affected apartments and would need to be acoustically designed to ensure that internal target acoustic levels are met and that adjacent properties are not affected by the system. In this instance, mechanically ducted air conditioning is proposed for each apartment (with condensers located on the rooftop within the screened service areas) and reinforced by condition of consent.

58. The DA was also referred to Ausgrid on 4 December 2018 in accordance with Clause 45 of State Environmental Planning Policy (Infrastructure) 2007. No response was received at the time this report was prepared (1 December 2019).

59. The provisions and requirements of the Infrastructure SEPP have been addressed and satisfied by the proposal.

Draft Remediation of Land SEPP

60. The Department of Planning and Environment has announced a Draft Remediation of Land SEPP, which will repeal and replace the current State Environmental Planning Policy No 55 — Remediation of Land.

61. The main changes proposed include the expansion of categories of remediation work which requires development consent, a greater involvement of principal certifying authorities particularly in relation to remediation works that can be carried out without development consent, more comprehensive guidelines for Councils and certifiers and the clarification of the contamination information to be included on Section 149 Planning Certificates.

62. Whilst the proposed SEPP will retain the key operational framework of SEPP 55, it will adopt a more modern approach to the management of contaminated land. The Draft SEPP will not alter or affect the findings in relation to contamination at the site.

63. Based on the Preliminary Site Investigation Report provided, a Detailed Site Investigation Report was required.

64. A Detailed Site Investigation Report No E24014.E02_Rev 0 dated 27 November 2019 prepared by eiaustralia was submitted to Council on 27 November 2019 provided an assessment and recommendations outlined in the SEPP 55 assessment above.

65. Based on the information provided, a contingency condition has been included in the recommended conditions detailing what is required to take place should unexpected contamination be found during demolition, excavation and construction.

The report concludes that the site is suitable for the proposal and the continued residential use of the land. This conclusion is supported by Council’s Environmental Health Section who recommended appropriate conditions of consent relating to any contamination findings during demolition, excavation or construction, and that a Clearance Certificate is to be obtained prior to the issue of an Occupation Certificate. These conditions are included in the recommendation below.

State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017

66. The Vegetation SEPP aims to protect the biodiversity values of trees and other vegetation in non-rural areas of the State, and to preserve the amenity of non-rural areas of the State through the preservation of trees and other vegetation.

67. The Vegetation SEPP applies to clearing of:

(a) Native vegetation above the Biodiversity Offset Scheme (BOS) threshold where a proponent will require an approval from the Native Vegetation Panel established under the Local Land Services Amendment Act 2016; and

(b) Vegetation below the BOS threshold where a proponent will require a permit from Council if that vegetation is identified in the council’s development control plan (DCP).

68. The Vegetation SEPP repeals clauses 5.9 and 5.9AA of the Standard Instrument - Principal Local Environmental Plan with regulation of the clearing of vegetation (including native vegetation) below the BOS threshold through any applicable DCP.

69. The proposal involves the removal of eighteen (18) trees from the site. Council’s Consultant Arborist has reviewed the proposed tree removal and raised no objection to approval of the trees on the basis that the landscape plan (see figure 14) shows nineteen (19) new trees to be planted on site. Furthermore a condition has been recommended requiring six (6) new street trees (Harpulia pendula) with a minimum pot size of 45 litres are to be planted within the road reserve fronting the subject site. These new trees will satisfactorily offset the loss of the existing trees with quality native replacement plantings.

Figure 14: Landscape plan showing the proposed landscaping. The red circles show the trees proposed to be removed.

70. On this basis, the proposal is consistent with relevant provisions of the Vegetation SEPP.

Draft Environment SEPP

71. The Draft Environment SEPP was exhibited from 31 October 2017 to 31 January 2018. This consolidated SEPP proposes to simplify the planning rules for a number of water catchments, waterways, urban bushland, and Willandra Lakes World Heritage Property.

72. Changes proposed include consolidating the following seven existing SEPPs:

· State Environmental Planning Policy No. 19 – Bushland in Urban Areas

· State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011

· State Environmental Planning Policy No. 50 – Canal Estate Development

· Greater Metropolitan Regional Environmental Plan No. 2 – Georges River Catchment

· Sydney Regional Environmental Plan No. 20 – Hawkesbury-Nepean River (No.2-1997)

· Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005

· Willandra Lakes Regional Environmental Plan No. 1 – World Heritage Property

73. The proposal is consistent with the provisions of this Draft Instrument.

State Environmental Planning Policy No 65 — Design Quality of Residential Apartment Development

74. State Environmental Planning Policy No.65 – Design Quality of Residential Flat Buildings (SEPP 65) was gazetted on 26 July 2002 and applies to the assessment of DAs for RFBs of three or more storeys in height (excluding car parking levels) and containing at least four dwellings. Amendment 3 to SEPP 65 commenced on 17 July 2015 and implemented various changes including the introduction of the Apartment Design Guide (ADG) to replace the Residential Flat Design Code. Given the nature of the development proposed, SEPP 65 applies.

75. The proposal involves the erection of a new 6 storey RFB (excluding basement car parking) containing 64 apartments and is therefore affected by the SEPP.

76. In determining DAs to which SEPP 65 relates, Clause 28(2) of the SEPP requires that the consent authority take into consideration:

a) the advice (if any) obtained from the design review panel, and

b) the design quality of the development when evaluated in accordance with the design quality principles, and

c) the Apartment Design Guide.

77. The proposal was considered by the Georges River Design Review Panel (DRP) on 14 March 2019. The DRP assessed the merits of the development against each of the nine (9) Design Quality Principles and the provisions of the Apartment Design Guide (ADG). The DRP’s comments are included and addressed within the table below, along with further comment from Council’s Planner.

78. In addition to satisfying the Design Quality Principles, the proposal generally satisfies relevant requirements of the ADG pertaining to design quality and amenity of the apartments. Notwithstanding some minor non-compliances (detailed below) the proposal satisfies the amenity, internal layout and design requirements of the ADG. The Panels comments are summarised and addressed in table 3 below (in bold). The recommendation from the meeting was that the Panel supports the application subject to the issues raised by the Panel being resolved to the satisfaction of Council.

Table 2: Application of SEPP 65

Clause	Standard	Proposal	Complies
3 - Definitions	Complies with definition of “Residential Apartment Development” (RAD)	Complies with definition	Yes
4 - Application of Policy	Development involves the erection of a new RFB, substantial redevelopment or refurbishment of a RFB or conversion of an existing building into a RFB. The definition of an RFB in the SEPP includes mixed use developments.	The erection of an RFB satisfies the SEPP’s definition of this residential land use.	Yes
Design Verification	Design verification statement provided by qualified designer Registered Architect Name and Registration No.	Design Verification Statement provided by Registered Architect: Paul Buljevic (Registration No.7768)	Yes

Table 3: Part 2 Design Quality Principles under the SEPP

SEPP 65 – Design Quality of Residential Flat Buildings

DRP Comment

Planners comment

Context and Neighbouring

Character

Good design responds and contributes to its context. Context is the key natural and built features of an area, their relationship and the character they create when combined. It also includes social, economic, health and environmental conditions.

Responding to context involves identifying the desirable elements of an area’s existing or future character. Well designed buildings respond to and enhance the qualities and identity of the area including the adjacent sites, streetscape and neighbourhood.

Consideration of local context is important for all sites, including sites in established areas, those undergoing change or identified for change.

Wyuna Street is located parallel to Princes Highway and is best described as a split zone street with the north western side zoned R3 and the south eastern side zoned R2. The south eastern side of the street is predominantly single storey homes.

There are mature street trees located opposite the site and these are consistent with other street trees in the neighbourhood.

The site slopes diagonally from the rear far western corner RL17.33 to the front eastern corner RL14.77.

The site context requires a built form that sensitively addresses the transition from very low scale to substantial scale unit buildings. However the context analysis provided is inadequate and extremely limited in essential information such as existing and future built form, streetscape, character,

The proposal is compatible with the context of the site and the neighbourhood character in a transitioning area, which is a composition of existing R2 Low Density Residential development that is in proximity to the site and nearby. The proposal is an appropriate response to the site that is consistent with the desired future character of the locality and will enhance the streetscape. The built form is generally in accordance with the DCP and side setbacks that are generally compliant with the ADG and compliant with the Kogarah Development Control Plan 2013. These will ensure ample separation of the building from both existing and future built form on adjacent sites to the front and rear

The proposal’s bulk and scale is an appropriate response to the up-zoning of the site under the New City Plan (KLEP 2012 Amendment No. 2). Its street façade is well articulated with a variety of appropriately sized openings and protruding balconies. All other facades are well modulated with various inset portions and balconies serving to break up the length of the side walls and an interesting variation in materiality on each external wall

Built Form and Scale

Good design achieves a scale, bulk and height appropriate to the existing or desired future character of the street and surrounding buildings.

Good design also achieves an appropriate built form for a site and the building’s purpose in terms of building alignments, proportions, building type, articulation and the manipulation of building elements.

Appropriate built form defines the public domain, contributes to the character of streetscapes and parks, including their views and vistas, and provides internal amenity and outlook.

The Panel supports the articulation of the first four (4) levels with recessed fifth and sixth levels with material differences and setbacks, which are generally compliant with the ADG standards. However there are a number of issues that require attention:

· The Panel does not support the upper duplex levels which breach the LEP height control.

· The ground level should better match the levels of the existing street level. The levels above however could be straightened so as to achieve a common datum at roof top level.

· The communal open space is problematic and insufficient (the Panel does not agree that the front entry zone is communal open space as currently documented and calculated).

· Communal open space with facilities should be provided on the roof top. Access should also be provided between the two (2) lift cores to provide for occasions where one (1) or the other lift is out of service.

· It would be preferable if ground floor entries were aligned so as to allow views to the rear garden.

· Redesign of the front built form to simplify and reduce ground level paved open space and maximise tree planting along Wyuna Street.

· Circulation and egress at ground floor should be simplified and planting maximised on side setbacks.”

The habitable spaces located on the seventh level have been removed and the building is now a six storey building.

A roof top communal open space area has been created.

Only lift overruns, fire stairs and the roof top communal open space shade structures breach the maximum height development standard. An amended Clause 4.6 variation has been submitted to reflect this change.

The building is stepped to match the ground levels of the street. An accessible ramp has been provided on the roof top to enable access along the entire roof top.

The communal open space can be accessed from both lifts.

The applicant has not realigned ground floor entries with the rear garden. This would result in a significant redesign.

Landscaping is to be provided around the substation to suitably screen. In addition landscaping in the front setback has been amended to provide Brachycilon Acerifolius, 2 x Eucalyptus Robusta and 2 x Eucalyptus Saligna. The entry pathways are accessible providing access to the main entries.

The external paths which were previously provided along the side boundaries around the buildings to provide access to the rear yard communal open space have been reduced. This area has been allocated as private open space for the ground floor units with the provision of additional landscaping and planting.

Density

Good design achieves a high level of amenity for residents and each apartment, resulting in a density appropriate to the site and its context.

Appropriate densities are consistent with the area’s existing or projected population. Appropriate densities can be sustained by existing or proposed infrastructure, public transport, access to jobs, community facilities and the environment.

Council requires a revision of the GFA proposed to ensure it complies with density requirements. The Panel would support a minor access FSR if needed to provide for communal roof top facilities

Acceptable based on comments above.

As detailed under Principle 2 above, the amended proposal complies with the FSR development standard of KLEP 2012.The amended proposal is therefore consistent with the desired future density of the locality and the site.

Sustainability

Good design combines positive environmental, social and economic outcomes.

Good sustainable design includes use of natural cross ventilation and sunlight for the amenity and liveability of residents and passive thermal design for ventilation, heating and cooling reducing reliance on technology and operation costs. Other elements include recycling and reuse of materials and waste, use of sustainable materials and deep soil zones for groundwater recharge and vegetation.

The development needs to provide large trees to improve residential amenity and neighbourhood microclimate.

Further consideration is required of the current basement footprint, services and OSD tanks to maximise capacity for trees and provide unimpeded deep soil zones. It is recommended that solar panels be included on the roof top.

Stormwater management systems including WSUD proposals should be developed for the site.

The landscape plan has been amended to provide large trees including Brachychilon Acerifolius, 2 x Eucalyptus Robusta and 2 x Eucalyptus Saligna in the front setback.

The applicant has indicated that the proposal complies with the BASIX requirements without the need for solar panels.

Landscape

Good design recognises that together landscape and buildings operate as an integrated and sustainable system, resulting in attractive developments with good amenity. A positive image and contextual fit of well designed developments is achieved by contributing to the landscape character of the streetscape and neighbourhood.

Good landscape design enhances the development’s environmental performance by retaining positive natural features which contribute to the local context, co-ordinating water and soil management, solar access, micro-climate, tree canopy, habitat values and preserving green networks.

Good landscape design optimises useability, privacy and opportunities for social interaction, equitable access, respect for neighbours’ amenity and provides for practical establishment and long term management.

Wyuna Street is a very important interface between the low and higher density residential neighbourhoods and the landscaping is critical to achieving good streetscape character. The front setback needs to be completely redesigned including the pathway entries, balcony arrangements and gardens to create a cohesive avenue of trees and gardens along the full frontage. Gums to match gum trees on the adjacent frontages should be provided to create an avenue planting

As noted above under ‘Built Form’ the side facing courtyard should be reduced and garden beds increased to maximise screening to adjacent properties

Refer to comments above regarding communal open space

The proposal of new street tree planting in the front verge under the overhead power lines is supported

Refer to notes above with the provision of additional planting. Six (6) street trees with pot sizes of 45 litres are proposed as part of the landscape plan.

The above ground power lines will severely restrict street trees reaching their full potential and it is recommended by way of a condition that the services be located below ground that way the trees will not be obstructed and a better streetscape outcome will occur.

Rooftop communal open space has been included which is accessed from both lifts as access to the ground floor area of communal open space is convoluted. This satisfies the DRPs comments.

Although the KDCP does not include controls regulating the removal of telecommunication lines and placing them below ground a standard condition is imposed which requires the applicant to consider their relocation. This would create a substantial improvement in the appearance of the development of the streetscape and ensure street trees can reach optimal heights without pruning around services.

Amenity

Good design positively influences internal and external amenity for residents and neighbours. Achieving good amenity contributes to positive living environments and resident well-being.

Good amenity combines appropriate room dimensions and shapes, access to sunlight, natural ventilation, outlook, visual and acoustic privacy, storage, indoor and outdoor space, efficient layouts and service areas and ease of access for all age groups and degrees of mobility.

Generally of good quality. The following detailed issues should be addressed:

· Bedroom 2 in Unit AG06 has very poor amenity looking immediately into the car access ramp. This section of ramp should be capped and landscaped.

· Bedrooms to Units AG02 and BG02 have direct privacy conflicts with adjacent communal paths.

· There are privacy conflicts between Bedroom 2 of Unit B05 and Bedroom 1 of Unit B05 (and units above) and Bedroom 2 of Unit A03 and Bedroom 1 of Unit A02 (and units above). These windows need to be redesigned to ensure visual and acoustic privacy.

· Unit B02 and A05 are comprised by the location of service chute creating awkward internal circulation.

· Provide additional screening to ensure privacy and weather protection to all projecting corner balconies.

Satisfactory and DRP comments addressed through amended plans.

Landscaping over the basement ramp has been extended and screens provided.

A planter box has been provided adjacent to these windows to minimise privacy conflicts.

Windows of units have been reduced in size and angled metal screen battens provided to ensure visual privacy.

No changes made to the location of services.

Metal screen battens have been provided on projecting corner balconies adjacent to bedrooms to ensure privacy.

Safety

Good design optimises safety and security within the development and the public domain. It provides for quality public and private spaces that are clearly defined and fit for the intended purpose.

Opportunities to maximise passive surveillance of public and communal areas promote safety.

A positive relationship between public and private spaces is achieved through clearly defined secure access points and well-lit and visible areas that are easily maintained and appropriate to the location and purpose.

Deeply recessed entrance doors present potential safety hazards and should be relocated close to the building frontage

Issues raised by the DRP have been addressed with amended plans. A metal bar security gate has been added to each pedestrian entry in front of the front building line.

Housing Diversity and Social Interaction

Good design achieves a mix of apartment sizes, providing housing choice for different demographics, living needs and household budgets.

Well-designed apartment developments respond to social context by providing housing and facilities to suit the existing and future social mix.

Good design involves practical and flexible features, including different types of communal spaces for a broad range of people and providing opportunities for social interaction among residents.

Acceptable in relation to housing diversity

Location of proposed communal open space is not acceptable due to immediate interface with adjacent units and it is insufficient for the current density. See comments above regarding provision of communal open space at roof top.

A roof top communal open space has been provided in addition to the ground floor communal open space.

Aesthetics

Good design achieves a built form that has good proportions and a balanced composition of elements, reflecting the internal layout and structure. Good design uses a variety of materials, colours and textures.

The visual appearance of a well-designed apartment development responds to the existing or future local context, particularly desirable elements and repetitions of the streetscape.

The Panel supports the articulation of the first four (4) levels with a recessed fifth and sixth level articulated with different materials and setback. Overall the building should be refined to be less visually assertive, reducing the contrast between dark and light colours and simplifying forms.

While the articulation of the ‘base’ into four (4) components is supported, the creation of framed figurative elements appears out of scale with its transitional context. It may be better to treat each of the four (4) elements with a consistency material rather than emphasise larger scale figurative expression

The proposed colours and materials have been amended incorporating the following:

· Fixed metal feature screens amended to bronze pearl.

· A warmer tone has been introduced to the stone fencing fronting Wyuna Street.

· The metal cladding colour has been amended to colourbond basalt which is a softer grey with a brown undertone.

It is considered these colours are compatible with the residential area.

79. The amended plans have addressed the DRP comments and the development is considered to be a suitable and acceptable design response for the site.

80. Clause 28 of SEPP 65 requires the consent authority to take into consideration the provisions of the Apartment Design Code. The table below assesses the proposal against these provisions.

Table 4: Part 3 and Part 4 – Compliance with the ADG

Clause

Standard

Proposal

Complies

3D - Communal open space

1. Communal open space has a minimum area equal to 25% of the site.

Minimum 654sqm

-Where it cannot be provided on ground level it should be provided on a podium or roof

-Where developments are unable to achieve the design criteria, such as on small lots, sites within business zones, or in a dense urban area, they should:

• provide communal spaces elsewhere such as a landscaped roof top terrace or a common room

• provide larger balconies or increased private open space for apartments

• demonstrate good proximity to public open space and facilities and/or provide contributions to public open space

2. Developments achieve a minimum of 50% direct

sunlight to the principal usable part of the communal open space for a minimum of 2 hours between 9 am and 3 pm on 21 June (mid-winter)

The calculations indicate the total area of communal open space amounts to 666sqm (25.4% of the site). There are two distinct areas of communal open space provided as part of the development.

1. Ground Floor Area. The ground floor communal open space is located at the rear of between the two distinct buildings. The total area of communal open space her is 310sqm.

2. Roof top which amounts to 356sqm.

The total amount of communal open space is 666sqm which amounts to 25.4% of the site, complying with the requirement.

The quality of spaces and their design is well considered and there are large expanses of landscaped area that are functional and useable within the development. The ground floor space provides a secluded area at the rear that allows the occupants to benefit from passive and active communal open space. The rooftop area of open space is another option for occupants and their visitors which is well located and private.

Well over 50% of the area of communal open space will achieve in excess of 2hours of solar access during midwinter.

Yes

3E – Deep Soil zones

1. Deep soil zones are to meet the following minimum

requirements:

Min deep soil area of 7% (183.05sqm)

Minimum dimension of 6m

Deep Soil Zone (DSZ) calculation = 248.3sqm (9.5%)

As the site area exceeds 1,500sqm, the only parts of the site considered to be deep soil areas need to exceed 6m in width.

The width of the deep soil zone varies between 3.82m and 4.5m.

It should be noted that there are other substantial areas of deep soil where the width is less than 6m but have not been included i.e. the area of the development adjoining the basement to the south east. Although the width of this area is less than 6m it allows for a generous amount of deep soil and permits substantial planting to occur. There are also generous pockets of deep soil around the periphery of the site.

Yes the amount of deep soil zone complies.

No the minimum 6m dimension has not been provided.

Although the width of the DSZ is less than 6m, the proposed landscaping still caters for suitable species of trees and shrubs that will have adequate clearance around the trees to ensure their long term health.

3F- Visual Privacy

Separation between windows and balconies is provided to ensure visual privacy is achieved.

Minimum required separation distances from buildings to the side and rear boundaries are as follows:

Up to 12m (4 storeys)

Habitable - 6m

Non-habitable – 3m

Up to 25m (5-8 storeys)

Habitable – 9m

Non-habitable – 4.5m

Eastern and western side boundaries – The building is setback 4.5m from the eastern and western boundaries at ground level and levels 1 – 3. This is considered acceptable as the non-compliance is to the rear units of the building at ground level and levels 1-3. The windows are highlight windows and are located within bedrooms.

At levels 1 – 3 angled walls have also been provided which are located 3.17m from the boundary however these are considered acceptable as they do not have any windows facing the allotment boundary and provide articulation to an otherwise blank wall.

The upper levels (levels 4 and 5) are setback 9m which complies with the nominated separation distances of the ADG.

Northern (rear boundary) – The building is setback a minimum of 6m from the rear boundary at ground level and to Levels 1-3, with the exception of a planter box that is located to provide screening and afford privacy from/to the rear property.

The building at Level 4 is setback 9m from the rear boundary with the exception of a planter box located behind the balcony.

On level 5 the building is setback the required 9m.

The existing physical separation of properties on the eastern side of Wyuna Street, when taken from each street boundary is calculated to over 12m so the separation distances suggested by the ADG will be achieved given the siting of the building.

No but considered acceptable on merit as the objectives have been achieved.

Yes generally consistent with the ADG requirements with the exception of the planter boxes located to the rear of the balconies.

3G – Pedestrian Access and entries

Building entries and pedestrian access connects to and addresses the public domain.

Multiple entries (including communal building entries and individual ground floor entries) should be provided to activate the street edge

Separate front entries to the ground floor apartments AG01, AG06 & BG01, BG06 off Wyuna Street are provided.

Separate egress is also provided through the fire stairs located on the eastern and western elevations which discharge to Wyuna Street.

Yes

3H-Vehicle Access

Vehicle access points are designed and located to achieve safety, minimise conflicts between pedestrians and vehicles and create high quality streetscapes

The driveway access to the basement has been provided off Wyuna Street where the existing driveway is located. The driveway width is 5.5m.

The size and location of the driveway is considered satisfactory and no conflicts are anticipated.

Yes

3J-Bicycle and car parking

For development in the following locations:

- On sites that are within 800m of a railway station or light rail stop in the Sydney Metropolitan Area; or

- On land zoned and sites within 400m of land zoned B3 Commercial Core, B4 Mixed Use or equivalent in a nominated regional centre

The minimum car parking requirement for residents and visitors is set out in the Guide to Traffic Generating

Developments, or the car parking requirement prescribed by the relevant council, whichever is less.

The subject site is not within an “accessible location, pursuant to the ADG and as such compliance with the parking provisions of Part B4 of the KDCP are applicable in this assessment.

Compliance with the car parking provisions in the KDCP are shown in the table below.

N/A

B4 Parking and Traffic Controls of KDCP 2013

Residential parking:

16 x 1bedroom units @ 1 space per unit = 16 spaces required

36 x 2 bedroom units @ 1.5 spaces per unit = 54 spaces required.

12 x 3 bedroom units @ 2 spaces per unit = 24 spaces required

Total required resident parking = 94 spaces

96 residential car parking spaces, which is compliant.

A total of 107 spaces are required (which including the 13 visitor car spaces) The development provides for 109 spaces in total which satisfies Council’s requirement.

Basement 1 has 48 spaces and Basement 2 has a total of 61 spaces.

Yes

Visitor parking:

64 total units @ 1 space per 5 units = 13 (12.8) spaces required

13 visitor spaces are provided with one space doubling up as a car wash bay

Yes

Car wash bay:

1 bay, which can also function as a visitor space

1 car wash bay is provided which doubles as a visitor space

Yes

Bicycle Parking:

1 space per 3 dwellings = 22

1 space per 10 dwellings for visitors = 8 spaces

Total = 30 spaces required

22 residential bicycle parking spaces are provided in Basement No 1

8 visitor bicycle parking spaces are also provided in Basement No 1

Total = 30 spaces provided

Yes

4A- Solar and daylight access

Living rooms and private open spaces of at least 70% of apartments in a building receive a minimum of 2 hours direct sunlight between 9am and 3pm at mid-winter in the Sydney Metropolitan Area

A maximum of 15% of apartments in a building receive no direct sunlight between 9am and 3pm in midwinter

75% (48 units) achieve a minimum of 2 hours sunlight in midwinter.

Solar access diagrams have been submitted with the application breaking down the units and the amount of solar access they obtain.

The development is generally well orientated. The solar access diagrams have been confirmed and are considered compliant.

Forty eight (48) units will have more than 2hrs of solar access in midwinter which amounts to 75% of the development. Five (5) apartments (AG03, AG04, A1.06, A2.06, and A3.06) receive 1 hour of solar access

A total of eleven (11) apartments (AG06, BG01, BG02, B1.01, B1.02, B2.01, B2.02, B3.01, B3.02, B4.01, B5.01) receive no solar access which amounts to 17% of the development.

The building has been designed so that most apartments are dual aspect and their main living spaces are orientated to the north and north east with bedrooms located towards the west and south west were possible.

Yes

No, however considered acceptable on merit, given 75% of units achieve 2hrs of sunlight as per the ADG. Of the 48 units achieving a minimum of 2hrs, 7 units achieve 4hrs and 14 units achieve 3hrs of sunlight.

The proposal acceptable given the lot orientation and unit layout and design.

4B- Natural Ventilation

At least 60% of apartments are naturally cross ventilated in the first nine storeys of the building.

Overall depth of a cross-over or cross-through apartment does not exceed 18m, measured glass line to glass line

The building should include dual aspect apartments, cross through apartments and corner apartments and limit apartment depths

65.62% (42 units) are cross ventilated.

The development has been designed to comply with the ADG in that the depth of cross over apartments does not exceed 18m and the design has sensitively considered the location.

The development provides dual aspect apartments, cross through and corner apartments.

Yes

4C-Ceiling Heights

Measured from finished floor level to finished ceiling level, minimum ceiling heights are:

Habitable rooms = 2.7m

Non-habitable rooms = 2.4m

The floor to floor heights at each level are 3.1m which are as specified and preferred by the ADG in order to cater for slabs, servicing and ducting, however, floor to ceiling heights of 2.7m can be achieved at each level.

Yes

4D-1 Apartment size and layout

Apartments are required to have the following minimum internal areas:

1 bedroom = 50sqm

2 bedroom = 70sqm

3 bedroom = 90sqm

The minimum internal areas include only one bathroom. Additional bathrooms increase the minimum internal area by 5sqm each

Every habitable room must have a window in an external wall with a total minimum glass area of not less than 10% of the floor area of the room. Daylight and air may not be borrowed from other rooms

The internal floor areas of each apartment satisfy the requirements of the ADG.

1 bedroom = 50-56sqm

2 bedroom = 75-101sqm

3 bedroom = 95-103sqm

Calculated accordingly.

Given that the building satisfies the minimum separation distance required, window openings are generous and standard sizes which are greater than 10% of the floor area of the room.

Yes

4D-2 Apartment size and layout

Habitable room depths are limited to a maximum of 2.5 x the ceiling height

In open plan layouts (where the living, dining and kitchen are combined) the maximum habitable room depth is 8m from a window

The minimum internal ceiling heights will be 2.7m which creates maximum habitable room depths of 6.75m.

The design relies on an open plan arrangement and the depths of most of the living/dining/kitchen areas of all apartments have been designed not to exceed 8m in depth.

Yes

Master bedrooms have a minimum area of 10sqm and other bedrooms 9sqm (excluding wardrobe space)

Bedrooms have a minimum dimension of 3m (excluding wardrobe space)

Living rooms or combined living/dining rooms have a minimum width of:

-3.6m for studio and 1 bedroom

- 4m for 2 and 3 bedroom apartments

The width of cross-over or cross-through apartments re at least 4m internally to avoid deep narrow apartment layouts

All master bedrooms have internal areas with a minimum of 10sqm.

A minimum dimension of 3m is achieved.

Living spaces have a minimum width of 4m.

The minimum width of 4m has been achieved.

Yes

4E- Private Open space and balconies

All apartments are required to have primary balconies as follows:

-1 bedroom = 8sqm/2m depth

-2 bedroom = 10sqm/2m depth

-3+ bedroom = 12sqm/2.4m

The minimum balcony depth to be counted as contributing to the balcony area is 1m

For apartments at ground level or on a podium or similar structure, a private open space is provided instead of a balcony. It must have a minimum area of 15sqm and a minimum depth of 3m

1 bedroom units have minimum areas for their balconies of 8sqm

2 bedroom units have minimum balcony areas of 10sqm

3 and 4 bedroom units have minimum balcony or ground floor courtyards with minimum areas of 12sqm (except 3 bedroom apartments on levels 1 – 3)

All balconies achieve the required minimum depths.

Ground floor apartments have generous sized private open space courtyards with the following areas;

BG01 – 78sqm

BG02 – 41sqm

BG03 – 129sqm

BG04 – 52sqm

BG05 – 23sqm

BG06 – 44sqm

AG01 – 45sqm

AG02 – 23sqm

AG03 – 52sqm

AG04 – 130sqm

AG05 – 52sqm

AG06 – 38sqm

All private open space courtyards provide an area with a minimum depth of 3m.

Yes

With the exception of the 3 bedroom apartments on levels 1-3 which provide a 9sqm north facing balcony and a 5sqm south facing balcony. Although not meeting the numerical requirements of the ADG for a single balcony, the total combined balcony area achieves a private open space area of 14sqm. On merit it is considered acceptable.

Yes

4F- Common circulation areas

The maximum number of apartments off a circulation core on a single level is eight

The development has been broken up into two buildings (centrally attached) which have their own circulation cores for each building. Six (6) apartments are serviced off each circulation core.

Complies

4G- Storage

In addition to storage in kitchens, bathrooms and

bedrooms, the following storage is provided:

1 bedroom = 6m³

2 bedroom – 8m³

3 bedroom – 10m³

At least 50% of storage is to be located within the apartment.

The basement has been designed to provide for individual storage spaces for apartments. Every apartment includes additional storage areas above the provision of wardrobes in bedrooms.

The applicant has submitted storage plans which designate the storage spaces and show general compliance with the ADG.

Yes

4H- Acoustic Privacy	Adequate building separation is provided within the development and from neighbouring buildings/adjacent uses. Window and door openings are generally orientated away from noise sources Noisy areas within buildings including building entries and corridors should be located next to or above each other and quieter areas next to or above quieter areas Storage, circulation areas and non-habitable rooms should be located to buffer noise from external sources	A detailed assessment in respect to the acoustic compliance of the scheme has been discussed in detail earlier. Some additional construction methods will need to be implemented to improve acoustic amenity internally within the apartments. These measures are standard for developments adjoining a noisy roadway. They relate to specific materials (glazing, sealing areas, types of finishes, implementing mechanical ventilation to some habitable areas, flooring finishes etc.). Achieved Generally acceptable	Yes Yes Yes
4J – Noise and Pollution	To minimise impacts the following design solutions may be used: • physical separation between buildings and the noise or pollution source • residential uses are located perpendicular to the noise source and where possible buffered by other uses • buildings should respond to both solar access and noise. Where solar access is away from the noise source, non-habitable rooms can provide a buffer • landscape design reduces the perception of noise and acts as a filter for air pollution generated by traffic and industry	The design solutions within the ADG which seeks to minimise noise and acoustic impacts have been considered through the design and layout of apartments.	Yes
4K – Apartment Mix	A range of apartment types and sizes is provided to cater for different household types now and into the future. The apartment mix is distributed to suitable locations within the building	The development offers a mix of 1, 2, and 3 bedroom apartments in the following manner; 16 x 1 bedroom apartments = 25% 36 x 2 bedroom apartments = 56% 12 x 3 bedroom apartments = 19%	Yes
4L – Ground Floor Apartments	Street frontage activity is maximised where ground floor apartments are located. Design of ground floor apartments delivers amenity and safety for residents.	The proposed design aims to create a four storey podium level to Wyuna Street with the upper levels recessed further to create a more sympathetic transition to the R2 zone to the south. Within these podiums, the design creates larger four storey cross over apartments which provide variety and diversity to the available new housing stock in the immediate area. The design encourages activation through the provision of ground floor functional courtyards, upper level balconies and by the design of the main entrance lobby to each building.	Yes
4M - Facades	Facades should be well resolved with an appropriate scale and proportion to the streetscape and human scale.	The facades of the building are well resolved with an appropriate level of articulation including to the street. The proposal adequately addresses Objective 4M-1 of the ADG, which states “Building Facades provide visual interest along the street while respecting the character of the local area.” There is an appropriate degree of expression of vertical scale and modulation within the facades to respect and respond to the existing and future desired streetscape character. The fenestration of the building has been improved and the podium and the part four storey elements of the building have been more distinctly defined and independently treated so to differentiate the recessed upper levels.	Yes
4N – roof design	Roof treatments are integrated into the building design and positively respond to the street. Opportunities to use roof space for residential accommodation and open space are maximised. Incorporates sustainability features.	The roof design is a standard flat roof form which is consistent with the general character and form of the building. The roof includes communal open space which complies with the intention of the ADG.	Yes
4O – Landscape Design	Landscape design is viable and sustainable, contributes to the streetscape and amenity	The Landscape Design has been discussed in detail earlier in this report. The concept is considered to be well designed with an integrated landscape plan which will improve landscaping across the site and will improve the visual appearance of the development and general nature of the streetscapes that the development adjoins as currently there is limited planting on the street. The proposed landscape plan includes the planting of six (6) street trees to Wyuna Street.	Yes
4P- Planting on Structures	Planting on structures – appropriate soil profiles are provided, plant growth is optimised with appropriate selection and maintenance, contributes to the quality and amenity of communal and public open spaces	The design includes a series of planter boxes on structures, adjacent to balconies and bedrooms and the ground floor communal open space. This should enhance the elevations by introducing green walls to the built form.	Yes
4Q – Universal Design	Universal design – design of apartments allow for flexible housing, adaptable designs, accommodate a range of lifestyle needs	Satisfactory – the design offers a wide variety of apartment styles and forms many of which can be integrated and amalgamated in the future where necessary.	Yes
4R – Adaptive reuse	Adaptive reuse as apartment of existing buildings - new additions are contemporary and complementary, provide residential amenity while not precluding future adaptive reuse.	Some apartments have been designed so they could be amalgamated, consolidated or reduced. There is some general adaptability within the design.	Yes acceptable
4U – Energy Efficiency	Development incorporates passive environmental design, passive solar design to optimise heat storage in winter and reduce heat transfer in summer, natural ventilation minimises need for mechanical ventilation	A compliant BASIX Certificate accompanies the application.	Yes
4V – Water management and conservation	Water management and conservation – potable water use is minimised, stormwater is treated on site before being discharged, flood management systems are integrated into the site design	The stormwater and drainage design was amended to address Council’s Engineering concerns and is now considered to be satisfactory and compliant subject to conditions.	Yes
4W – Waste Management	Waste management – storage facilities are appropriately designed, domestic waste is minimised by convenient source separation and recycling	The waste management arrangement is satisfactory. The design relies on two separate garbage areas within the basement. The Waste Management Plan outlines the disposal of waste during construction and for when the development is occupied. Waste bins will be taken out onto Wyuna Street for collection.	Yes
4X – Building Maintenance	Building design provides protection form weathering Enables ease of maintenance, material selection reduces ongoing maintenance cost	Contextually the proposed materials are considered to be satisfactory and rely on earthy tones and colours which are reflective of the general environment. There are large expanses of the building to be rendered, which does required future maintenance of the building. The face brick finishes to larger sections would be preferable. The ADG only provides advice in relation to this matter and does state that “Building facades should use materials that are long lasting and weather well over time, such as brickwork, tiles and glass”. In general the cladding that is proposed, window openings and the balustrade details won’t require significant maintenance; it is the rendered parts that will require painting over time.	Yes

Environmental Planning Instruments

Kogarah Local Environmental Plan 2012 (KLEP 2012)

Zoning

81. The subject site is zoned Zone R3 Medium Density Residential under the provisions of the Kogarah Local Environmental Plan 2012 (KLEP2012). Refer to zoning map below. The proposed development is defined as a Residential Flat Building which is a permissible land use in the zone.

Figure 15: Zoning map extract from the KLEP 2012 (Map Extract _007)

82. The objectives of the zone are as follows:

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

· To provide a variety of housing types within a medium density residential environment.

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

83. The proposal satisfies the objectives of the R3 Zone as it will provide for a variety of residential apartments in a medium density residential environment.

84. The extent to which the proposal complies with the relevant standards of Kogarah Local Environmental Plan 2012 (KLEP2012) is outlined in Table 5 below.

Table 5: KLEP2012 Compliance Table

Clause	Standard	Proposed	Complies
2.2 Zone	R3 Medium Density Residential	The proposal is defined as a Residential Flat Building (RFB) which is a permissible use within the zone.	Yes
2.3 Objectives	Objectives of the Zone	Consistent with zone objectives.	Yes
4.1A Minimum lot sizes for Residential Flat Buildings	Clause 4.1A requires a minimum site area of 1,000sqm for the purpose of RFB’s in the R3 zone	The total site area is 2,615sqm.	Yes
4.3 – Height of Buildings	21m as identified on Height of Buildings Map	The building has been amended so that no habitable area exceeds the 21m height limit. Originally larger parts of the roof and ceilings encroached. The final modified scheme includes only the lift overrun, fire stairs and communal roof space exceeding the height control. An amended Clause 4.6 Statement has been submitted and is addressed in detail later in this report.	No
4.4 – Floor Space Ratio	2:1 as identified on Floor Space Ratio Map	2:1	Yes
4.5 – Calculation of floor space ratio and site area	FSR and site area calculated in accordance with Cl.4.5	The original gross floor area (GFA) calculation was considered to be inaccurate as it did not include the common foyers. The inclusion of the common areas not previously calculated; along with the removal of the habitable spaces on the seventh floor now result in a compliant FSR.	Yes
4.6 – Exceptions to Development Standards	The objectives of this clause are as follows: (a) - to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) - to achieve better outcomes for and from development by allowing flexibility in particular circumstances.	The proposal originally exceeded the height control pursuant to Clause 4.3 of the KLEP and therefore a Clause 4.6 Statement was submitted to justify the non-compliance with the control. The applicant has amended the design to ensure that no habitable spaces encroach on the height limit however a roof terrace and the associated ancillary services (lifts and stairs) now exceeds the height control. An updated Clause 4.6 Statement has been provided to justify the variation and the non-compliance is considered to be reasonable and is well founded. A detailed discussion in regards to this issue is provided in the “Exception to Development Standards” section.	An amended Clause 4.6 Statement has been submitted for the height variation.
5.10 – Heritage Conservation	The objectives of this clause are; (i) to conserve the environmental heritage of Kogarah, (ii) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views.	The proposal does not adjoin any environmental heritage item nominated under KLEP 2012. There is a classified Heritage item located at 186-190 Princes Highway identified as 13 “McWilliam House”, a house and garden and the property is of local significance. The prosed development given its separation from this building is not expected to adversely affect the heritage item.	Yes
6.1 Acid Sulphate Soils (ASS)	The objective of this clause is to ensure that development does not disturb, expose or drain acid sulfate soils and cause environmental damage	The site is not affected by Acid Sulfate Soils under KLEP 2012.	N/A
6.2 Earthworks	To ensure that earthworks do not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land	The proposed development includes excavation and associated earthworks to accommodate two (2) levels of basement car parking.	Yes subject to conditions.
6.5 Airspace Operations	The consent authority must not grant development consent to development that is a controlled activity within the meaning of Division 4 of Part 12 of the Airports Act 1996 of the Commonwealth unless the applicant has obtained approval for the controlled activity under regulations made for the purposes of that Division.	The height of the proposed development is below the Obstacle Limitation Surface (OLS).	N/A

Exception to Development Standards

Detailed assessment of variation to Clause 4.3 Height of Buildings

85. The objectives of Clause 4.6 are as follows

(a) to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

86. The application was amended as the habitable roof space was above the height controls. The revised plans now have no habitable areas or spaces that encroach the LEP height control. Figure 17 below shows the southern elevation which shows a larger step in the built form to the north. The roof level now sits at RL35.35. The roof level now sits below the 21m height limit.

Figure 16: Street elevation as originally designed and proposed (courtesy PBD Architects, 2018)

Figure 17: Street elevation amended design (courtesy PBD Architects, 2019)

87. Despite the habitable areas and roof level designed to comply with the height limit, the amended design has included a rooftop terrace area, this area, its services and access (lift overrun and fire stairs) exceed the height control. In general Council has accepted that roof terraces and their associated services and amenities may exceed the height control within reason and if there are no environmental or amenity impacts and that the design satisfies the provisions of Clause 4.6 and the objectives of the zone and height control.

88. The proposed development seeks a variation to the development standard relating to height (Clause 4.3). The LEP identifies a maximum height of 21m for the Site (refer to Figure 15 below) and the proposed development will exceed the height by 2.02m which comprises of the stair and lift overrun which reach RL39.55. This amounts to a 9.6% variation to the control. This extent of non-compliance which occurs at the western lift overrun centrally located above Building B. The other structures which exceed the height are the fire stairs and roof awnings.

89. Any variation to a statutory control can only be considered under Clause 4.6 – Exceptions to Development Standards of the KLEP. An assessment of the proposed height against the survey plan levels was conducted to indicate the Applicant’s calculations are generally accurate.

Figure 18: Height of buildings map from KLEP 2012 taken from intramaps showing the permissible height as 21m

90. Clause 4.6(3) states that:

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

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

- that there are sufficient environmental planning grounds to justify contravening the development standard”

91. To support the non-compliance, the applicant has provided a request for a variation to Clause 4.3 in accordance with Clause 4.6 of KLEP and has updated the Clause 4.6 Statement to reflect the latest amended plans which is dated 26 August 2019. The Clause 4.6 request for variation is assessed as follows:

Is the planning control in question a development standard?

92. Height of Buildings control under Clause 4.3 of the KLEP 2012 is a development standard. The maximum permissible height is 21m (refer to Figure 18 above)

What are the underlying objectives of the development standard?

93. The objectives of Height of Buildings standard under Clause 4.3 of KLEP 2012 are:

(a) to establish the maximum height for buildings,

(b) to minimise the impact of overshadowing, visual impact and loss of privacy on adjoining properties and open space areas,

(c) to provide appropriate scale and intensity of development through height controls.

Compliance is unreasonable or unnecessary in the circumstances of the case (clause 4.6(3)(a))

94. There have been several Court cases that have established provisions to assist in the assessment of Clause 4.6 statements to ensure they are well founded and address the provisions of Clause 4.6. In Wehbe V Pittwater Council (2007) NSW LEC 827 Preston CJ set out ways of establishing that compliance with a development standard is unreasonable or unnecessary.

95. Preston CJ in the judgement then expressed the view that there are 5 different ways in which an objection may be well founded and that approval of the objection may be consistent with the aims of the policy, as follows (with emphasis placed on number 1 for the purposes of this Clause 4.6 variation:

1. The objectives of the standard are achieved notwithstanding non-compliance with the standard;

2. The underlying objective or purpose of the standard is not relevant to the development and therefore compliance is unnecessary;

3. The underlying object or purpose would be defeated or thwarted if compliance was required and therefore compliance is unreasonable;

4. The development standard has been virtually abandoned or destroyed by the Council's own actions in granting consents departing from the standard and hence compliance with the standard is unnecessary and unreasonable;

5. The zoning of the particular land is unreasonable or inappropriate so that a development standard appropriate for that zoning is also unreasonable and unnecessary as it applies to the land and compliance with the standard that would be unreasonable or unnecessary. That is, the particular parcel of land should not have been included in the particular zone.

96. The Clause 4.6 Statement was prepared in consideration of the recent court cases and their judgements.

97. Applicants comment: “In Wehbe V Pittwater Council (2007) NSW LEC 827 Preston CJ sets out ways of establishing that compliance with a development standard is unreasonable or unnecessary. This list is not exhaustive. It states, inter alia:

An objection under SEPP 1 may be well founded and be consistent with the aims set out in clause 3 of the Policy in a variety of ways. The most commonly invoked way is to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard.

The judgement goes on to state that:

The rationale is that development standards are not ends in themselves but means of achieving ends. The ends are environmental or planning objectives. Compliance with a development standard is fixed as the usual means by which the relevant environmental or planning objective is able to be achieved. However, if the proposed development proffers an alternative means of achieving the objective strict compliance with the standard would be unnecessary (it is achieved anyway) and unreasonable (no purpose would be served).

Figure 19: 3D Height diagram showing the sections of the building roof that exceed the height control (courtesy Architects, 2018)

Figure 20: 3D Height diagram showing the sections of the building roof that exceed the height control (courtesy Architects, 2018

98. Relevantly, in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 (paragraph 16), Preston CJ makes reference to Wehbe and states:

“…Although that was said in the context of an objection under State Environmental Planning Policy No 1 – Development Standards to compliance with a development standard, the discussion is equally applicable to a written request under cl 4.6 demonstrating that compliance with a development standard is unreasonable or unnecessary.

Compliance with the maximum building height development standard is considered to be unreasonable and unnecessary as the objectives of that standard are achieved for the reasons set out in Section 7 of this statement. For the same reasons, the objection is considered to be well-founded as per the first method underlined above.

Notably, under Clause 4.6(4)(a)(ii) a consent authority must now be satisfied that the contravention of a development standard will 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.”

Clause 4.6(3)(b) are there sufficient environmental planning grounds to justify contravening the standard

99. Having regard to Clause 4.6(3)(b) and the need to demonstrate that there are sufficient environmental planning grounds to justify contravening the development standard, it is considered that there is an absence of any negative impacts of the proposed non-compliance on the environmental quality of the locality and amenity of adjoining properties in terms of overshadowing, overlooking or view loss.

100. Applicants Comment: “Having regard to Clause 4.6(3)(b) and the need to demonstrate that there are sufficient environmental planning grounds to justify contravening the development standard, it is considered that there is an absence of significant impacts of the proposed non-compliance on the amenity of future building occupants, on area character and on neighbouring properties. The non-compliance portions of the development are substantially setback from side boundaries, are not visible from the streetscape, and does not contribute to any significant overshadowing of neighbouring properties. It is also noted that no habitable space breaches the maximum height.

101. On “planning grounds” the proposal provides access to rooftop communal open space for residents without having any material impacts on surrounding development.

102. The variation to building height does not meaningfully impact on solar access, views or outlook and the streetscape appearance is not impacted by the variation. As indicated, the proposal provides for a floor space ratio which complies with the maximum permitted and accordingly, the height breach is not associated with additional density beyond what is expected by the controls or planned for the locality.”

Clause 4.6(4)(a)(ii) the proposed development will 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

103. Clause 4.6(4) states that:

“Development consent must not be granted for development that contravenes a development standard unless:

(a) the consent authority is satisfied that:

(i) the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii) the proposed development will 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,”

104. Applicants Comment: “The Height of Buildings Map nominates a maximum height of 21m for the site. It is requested that an exception to this development standard be granted pursuant to Clause 4.6 so as to permit a maximum height of 23.02m to the lift overrun of Lift B.

105. In order to address the requirements of subclause 4.6(4)(a)(ii), each of the relevant objectives of Clause 4.3 are addressed in turn below.

106. Objective (a) – The maximum height has been established at 21m for the site. The proposed development provides a residential development and meets the objectives of the R3 Medium Density Residential zone objectives. The proposed development is in line with the type of development envisaged for the site. The degree to which the proposal exceeds the maximum height is relatively minor and importantly the development complies with the maximum FSR for the site. For these reasons the proposed height meets Objective (a).

107. Objective (b) relates to minimising shadows on adjoining buildings and open space areas, visual impact and loss of privacy. Since the lift overruns and staircase are substantially setback from the levels below, they will not generate any substantial additional shadow impacts beyond those already cast by the levels below. Due to this substantial setback, particularly from the Wyuna Street frontage, the lift overruns and staircase shafts will not have a visual impact on the streetscape or adjoining development. In terms of visual and acoustic privacy, the rooftop communal open space is sufficiently setback from the levels below, and planter boxes are provided along the edge to ensure visual and acoustic privacy. For these reasons the proposed height meets Objective (b).

108. Objective (c) seeks to ensure development provides a suitable scale and intensity. The non-compliance of the height does not offend the objective of providing an appropriate scale and intensity of development at the site. The proposal provides a compliant FSR (2:1) and is therefore demonstrably at the intensity of development intended for the site. The built form, bulk and scale is appropriate for the site and the proposed non-compliance with height will not be visible in the streetscape and character of the locality. It is also noted that a substantial portion of the development is well below the height limit; i.e the height non-compliance is limited to a small portion of the overall bulk of the development. The majority of the development has a height approximately 2.0m-2.5m below the maximum height limit. The proposed development is therefore consistent with the objectives for maximum height, despite the numeric non-compliance.

109. The proposed height non-compliance does not impact upon the achievement of the zone objectives. The proposed development will provide increased housing supply for the community within a medium density residential environment. The proposal also provides a variety of housing types ranging from one bedroom apartments to three bedroom apartments. The height variation does not contravene any objectives for the zone and for that reason the proposed variation is acceptable.”

110. Officer Comment: The proposed development has been designed to ensure all habitable areas are located within the height limit and the only protrusions are in relation to the roof terrace, services, fire stairs which are generally small in nature. The lift overrun is the highest structure that exceeds the height control. The proposal generally satisfies the objectives of the development standard in the following ways;

(a) to establish the maximum height for buildings,

111. Officer Comment: The site and its immediately adjoining properties have been up scaled to allow for medium to larger scaled development. In part this is due to the location of the sites adjoining a busy roadway as these conditions cater for larger scaled developments. Figure 18 shows the extent of the immediate precinct which allows for a maximum height of 21m.

(b) to minimise the impact of overshadowing, visual impact and loss of privacy on adjoining properties and open space areas,

112. Officer Comment: This objective relates to considering the amenity impacts associated with the non-compliance. In terms of visual impact the structures are generally centrally located which reduces their visual appearance from the immediately adjoining streetscapes with the screening for air conditioning condensers is also recessed and setback from the edge of the roof to further minimise its visual appearance.

113. The objective seeks to “minimise” the visual impact, it is not requiring it to be eliminated or totally negated, and as such seeing the structure is not a reason for refusal, it’s the impact of the visual interference of this structure that is to be controlled. It can be said that in this case it is a small scale ancillary structure which will not be highly visible or an intrusive element given the scale and proportions of the building. In respect to the more dominant elements like the lift overrun accessing the roof terrace at the rear, this will be a visible element when viewed from a distance. It will not be visible from immediately adjoining properties and streetscapes given that it is centrally located. The roof top terrace area is located within the height limit so the use of that area is within the height control so that ancillary services which exceed the height control namely the WC, lift overrun and fire stairs will not contribute to any overlooking and the shadowing they create will be within the confines of the roof space and unfortunately overshadow the southern portions of the rooftop terrace area. There will be no adverse impacts in terms of overshadowing or overlooking to adjoining properties.

(c) to provide appropriate scale and intensity of development through height controls.

114. Officer Comment: New developments of a similar nature have been approved along John Street and Princes Highway (these developments have been considered and included earlier in this report) and have established a precedent for development in the street and immediate precinct. The proposed development is consistent with the pattern of development that is slowly being established in the up-zoned precinct.

115. The proposed increase in the overall height of the building’s which only relates to certain sections of the roof form can be catered for in this location given the siting, orientation and the fact the buildings comply with the anticipated building envelope which is largely compliant with the ADG and KDCP in terms of the separation distances, landscaped area requirements, front setback control etc. The proposed development is considered to satisfy the objectives of the development standard.

116. Officers comment: The exceedance in the control generally satisfies the objectives of the zone for the following reasons;

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

117. The development is providing for the housing needs within a medium density residential environment with a mix of apartment choices and layouts.

· To provide a variety of housing types within a medium density residential environment.

118. The development incorporates a diversity of apartment types (offering 1, 2, and 3 bedroom units, including adaptable and liveable units).

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

119. The development is residential in nature and does not include any additional land uses. This objective is offering some greater flexibility in the provision of land uses within this zone and is not a mandatory requirement.

120. The area of non-compliance is considered to be reasonable and will not establish an undesirable precedent. It will not have any adverse effect on the surrounding locality, which is emerging to be characterised by residential development of comparable character. The proposal promotes the economic use and development of the land consistent with its zone and purpose. The Panel is requested to invoke its powers under Clause 4.6 to permit the variation proposed.

121. The public benefit of the variation is that it will appropriately facilitate the provision of medium density housing on a R3 zoned site and provide for a range of housing stock. It is noted that in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118, Preston CJ clarified what items a Clause 4.6 does and does not need to satisfy. Importantly, there does not need to be a "better" planning outcome resulting from the non-compliance.

122. The second matter was in cl 4.6(3)(b), where the Commissioner applied the wrong test in considering this matter by requiring that the development, which contravened the height development standard, result in a "better environmental planning outcome for the site" relative to a development that complies with the height development standard (in [141] and [142] of the judgment). Clause 4.6 does not directly or indirectly establish this test. The requirement in cl 4.6(3)(b) is that there are sufficient environmental planning grounds to justify contravening the development standard, not that the development that contravenes the development standard have a better environmental planning outcome than a development that complies with the development standard.

123. The roof top area and its associated ancillary structures could be deleted and the building largely compliant however this space will add value and provide greater functionality and amenity for the future occupants. The ADG encourages the use of rooftop spaces.

124. In this case the proposal seeks to establish the preferred and appropriate design and built form outcome for this site with the building complying in large with the height standard. There will be no adverse amenity or visual impacts generated by the variation and the proposal satisfies the objectives of the zone and the development standard. In this case the justification to vary the height control is considered to be a reasonable and well-founded request.

Clause 4.6(b) the concurrence of the Secretary has been obtained.

125. Concurrence from the Secretary has been obtained and can be assumed in this case.

126. It is considered that the Clause 4.6 Statement lodged with the application addresses all the information required pursuant to Clause 4.6 and the statement is considered to be well founded as there are sufficient environmental planning grounds to justify contravening the standard given that in this case the proposal satisfies the objectives of the zone and development standard (Clause 4.3, building height control).

Development Control Plans

KOGARAH DEVELOPMENT CONTROL PLAN NO 2013 (KDCP)

127. Apart from satisfying some of the provisions of the ADG and SEPP 65 the controls within the KDCP are applicable. Part B, General Controls, Part C2 Medium Density, controls in Appendix 4 relating to residential development in the R3 zone are required to be considered in the design of the proposal.

128. Table 6 below summarises the compliance of the scheme in relation to these controls.

Table 6: KDCP2013 Compliance Table

KDCP 2013 Compliance Table
PART B – GENERAL CONTROLS
Required	Proposed	Complies
*B2 Tree Management and Greenweb*
Compliance with provisions of Clause 5.9 Preservation of Trees or Vegetation of KLEP 2012 must be achieved.	The issue of tree retention and removal has been addressed in detail earlier in this report. A series of new trees and plantings have been integrated into the landscape design and will include a series of compensatory trees around the periphery of the site and six street trees will be planted along the street frontage. Council’s Landscape Officer is satisfied with the Landscape Design and the proposal satisfies the DCP provisions.	Yes
*B3 – Development near busy roads and rail corridors*
Acoustic assessment for noise sensitive development may be required if located in the vicinity of a rail corridor or busy roads	An Acoustic report was prepared by Acoustic, Vibration and Noise Pty Ltd and assessed the development against the provisions of Clause 102 of the Infrastructure SEPP. The acoustic report provided a series of recommendations in the form of implementing construction techniques and materials that will assist in ameliorating acoustic impacts on the internal areas of the building. A detailed discussion regarding the acoustic compliance was conducted earlier in this report.	Yes
*B4 Parking and Traffic*
Residential parking: 16 x 1 bedroom units @ 1 space per unit = 16 spaces required 36 x 2 bedroom units @ 1.5 spaces per unit = 54 spaces required. 12 x 3 bedroom units @ 2 spaces per unit = 24 spaces required Total required resident parking = 94 spaces	A total of 107 spaces are required (which include the 13 visitor car spaces). The development provides for 109 spaces in total which satisfies Council’s requirement. Basement 1 has 48 spaces and Basement 2 has a total of 61 spaces.	Yes
Visitor parking: 64 total units @ 1 space per 5 units = 13 (12.8) spaces required	13 visitor spaces are provided with one space doubling as a car wash bay.	Yes
Car wash bay: 1 bay, which can also function as a visitor space	1 car wash bay is provided which doubles as a visitor space.	Yes
Bicycle Parking: 1 space per 3 dwellings = 22 1 space per 10 dwellings for visitors = 8 spaces Total = 30 spaces required	22 residential bicycle parking spaces are provided in Basement 1 8 visitor bicycle parking spaces are also provided in Basement 1 Total = 30 spaces provided	Yes
Loading Bays	One loading bay provided although not required for purely residential developments. This will assist with the movement of deliveries for the occupants via vans and utilities. Waste removal for the development is collected curb side.	Yes
Car park access and layout to comply with relevant Australian Standards	Ramps, parking, aisle widths and parking spaces satisfy the provisions of AS2890.	Yes
*B5 – Waste Management and Minimisation*
Submit Waste Management Plan (WMP) Provide a dedicated caged area within the bin room for the storage of discarded bulky items.	WMP was prepared by PBD Architects and dated October 2018. The development includes two designated waste storage rooms, and bulky good store on Basement Level 1. One room is located adjacent to Lift A and the other adjoining Lift B. There is provision for a total of 11 x 660L bins and 11 x 240L recycling bins within these waste storage areas. Bins will be collected from the street. A bulky goods area is designated and adjoins the loading area where larger pieces of furniture or waste can be stored for removal. The waste disposal area and arrangement is considered to be satisfactory and in accordance with Council’s requirements.	Yes
*B6 – Water Management*
All developments require consideration of Council’s Water Management Policy	The proposed method of stormwater management is considered satisfactory. Updated stormwater drainage plans have been submitted to address Council’s initial concerns and are now compliant with Council’s requirements subject to conditions.	Yes
*B7 – Environmental Management*
Building to be designed to improve solar efficiency and are to use sustainable building materials and techniques	Design, materials, siting and orientation generally optimise solar efficiency, with a high proportion of north-facing window openings. Glazing is minimised on the southern and western elevations. The development is BASIX-compliant.	Yes
PART C2 – MEDIUM DENSITY HOUSING
*1. Site isolation and amalgamation for medium density development*
Adjoining sites not to be left isolated. Site amalgamation requirements apply for specific sites.	The proposal does not cause any site isolation. The site is not subject to any amalgamation requirement.	Yes N/A
*2. Specific precinct controls – residential flat buildings*
Specific precinct controls apply to various sites and locations	The site is not located in a specific precinct nominated in the DCP.	N/A
*4. Medium site and density requirements*
20m minimum frontage for residential flat building	60.96m to Wyuna Street.	Yes
1.1sqm of site area per square metre of dwelling NOTE: The above DCP control is over-ridden by KLEP 2012 minimum lot size requirement which is 1000sqm.	Site Area = 2,615sqm which complies with the LEP requirement.	Yes
*5. Height and building envelope requirements*
4-storey RFBs have a “H1” height control of 12m; and a “H2” height control of 14m. (method for calculating these heights are discussed in detail in KDCP 2013)	No, the development has a maximum height of 21m with some ancillary structures on the roof exceeding this height. The proposal generally satisfies the statutory height and FSR provisions within the KLEP. The KDCP has not been updated to reflect the LEP changes in 2017.	No – see comment below
Comment on Building Height There is incongruence between the KLEP 2012 and the KDCP 2013 building height limits, and the KLEP 2012 heights prevail. The proposal is generally compliant with the maximum LEP height with the exception of the lift over run, fire stairs and roof top awnings. Refer to KLEP 2012 discussion on building height and the Clause 4.6 assessment.
*6. Building setbacks*
Front setbacks: Maximum 75% of width of building to be setback minimum 5m, remainder 25% being setback minimum 7m	Front setback from Wyuna Street ranges from 2.33 to 4.17m to front courtyards. The four storey podium along Wyuna Street is setback over 5m with small blade walls encroaching on the setback but these are considered to be minor elements which will provide some articulation and enhance privacy between dwellings. The building has varying setbacks at the upper ranging from 6.7m – 7m to balconies and 8.06m to 9.1 to the front wall of the building.	No – see comment below
Comment on Front Setbacks Partial non-compliance. The building complies with the 5m minimum but does not comply with the 25% of the frontage being setback 7m. The setback in this case is considered satisfactory as it is generally in context with the front setbacks of the existing dwelling houses and will be generally consistent with the front setback for 21 Wyuna Street. It is also noted that the external walls of the building are setback further; it is the balconies which are providing articulation to the building that do not comply.
Side/rear setbacks: 3m + one quarter of the amount that the wall height exceeds 3m. [3m + (¼ x 12m)] = 6m required.	Varies side setbacks are 4.5m to ground level and levels 1-3 Upper levels are setback 9m.	No – see comment below
Comment on side/rear setbacks The proposal fails to comply with the side and rear setback requirements within the KDCP as these have been prepared with the expectation of a two storey development on the subject sites. The provisions have not been updated to align with the height and FSR changes that have occurred as part of the LEP uplift. With respect to side setbacks the development generally complies with the SEPP 65 separation distances which are considered to be satisfactory. SEPP 65/ADG prevails over the DCP provisions for a residential flat building.
*7. Site coverage*
Maximum 45% (1,176.75sqm)	Site coverage amounts to 43.47% (1,136.81sqm)	Yes
*8. Open space*
Courtyards for ground floor units must be 35sqm with min. 3m dimension. Otherwise all dwellings must have a balcony 12sqm with min. 3m dimension. (This control superseded by ADG Requirements)	Most ground floor courtyards have minimum areas of 23sqm in accordance with the provisions of SEPP 65/ADG. Some courtyards are larger having areas of 129 and 130sqm. There are dwellings which have smaller balconies than 12sqm. Again the provisions of SEPP 65 override the DCP provisions.	No (for some ground floor units) – but generally ground floor courtyards meet the SEPP65/ADG private open space requirements.
Common open space – 30sqm per dwelling with min. overall area of 75sqm and min. dimension of 5m. i.e. 30sqm x 64 units = 1,920sqm (This control is superseded by ADG Requirements)	Total area of open space that is provided is 666sqm this is some 1254sqm short of the requirement. The DCP provision is more onerous than the SEPP65/ADG provisions. The SEPP65/ADG provisions prevail.	No but SEPP 65 compliant.
Maximum 55% impervious area amounting to 1,438.25sqm	The development has a total area of some 1753.7sqm.	No however the development provides for more than the required amount of deep soil area and communal open space in accordance with SEPP 65/ADG which prevails.
*9. Vehicular access, parking and circulation*
Car parking to be provided in accordance with Part B4	Development complies with the KDCP numerical parking requirements.	Yes
Residential parking: 16 x 1bedroom units @ 1 space per unit = 16 spaces required 36 x 2 bedroom units @ 1.5 spaces per unit = 54 spaces required 12 x 3 bedroom units @ 2 spaces per unit = 24 spaces required Total required resident parking = 94 spaces	96 residential car parking spaces, which is compliant. A total of 107 spaces are required (which including the 13 visitor car spaces) The development provides for 109 spaces in total which satisfies Council’s requirement. Basement 1 has 48 spaces and Basement 2 has a total of 61 spaces.	Yes
Visitor parking: 64 total units @ 1 space per 5 units = 13 (12.8) spaces required	13 visitor spaces are provided with one space doubling up as a car wash bay	Yes
Car wash bay: 1 bay, which can also function as a visitor space	1 car wash bay is provided which doubles as a visitor space	Yes
Bicycle Parking: 1 space per 3 dwellings = 22 1 space per 10 dwellings for visitors = 8 spaces Total = 30 spaces required	22 residential bicycle parking spaces are provided in Basement 1 8 visitor bicycle parking spaces are also provided in Basement 1 Total = 30 spaces provided	Yes
Garages to be accessed from rear lane where available	Access is located off Wyuna Street and is in keeping with a current driveway access point only widened for the proposed use.	Yes
All residential flat buildings to provide car wash bay	There is no designated car wash bay however the KDCP allows for a visitor space to double as a car wash bay. A visitor car/wash bay has been provided on Basement 1.	Yes
*11. Solar access*
Where the neighbouring properties are affected by overshadowing, at least 50% of the neighbouring existing primary private open space or windows to main living areas must receive a minimum of 3 hours sunlight between 9am–3pm on the winter solstice (21 June)	From 9am until 12noon the development will overshadow the front and rear yards of 13, 15 and 17 Wyuna Street with the worst affectation being 9am. By 12noon these properties are unaffected. From 1pm until 3pm the development will overshadow the front yards of the dwellings on the southern side of Wyuna. From 9am until 1pm these properties are unaffected by the building.	Yes
*12. Views and view sharing*
Provide for reasonable sharing of views	The location does not have significant views. The development generally complies with height requirements and is reasonable in terms of view sharing.	Yes
*13. Adaptable and accessible housing*
51+ units – 6 adaptable units + 10% of additional units beyond 60 (rounded up to the nearest whole number 64 units proposed – 7 adaptable units required	Sixty Four (64) units are proposed which requires that seven (7) adaptable units are provided. Seven (7) adaptable units are proposed.	Yes

Interim Policy – Georges River Development Control Plan 2020

129. Council at its Environment and Planning Committee Meeting dated 11 June 2019 resolved to adopt the Georges River Interim Policy DCP.

130. The Interim Policy is a public policy that is to be used as a guide to set a consistent approach for the assessment of residential development within the LGA. It is a supplementary document, meaning that current DCP controls will prevail if they are considered best practice. The Interim Policy has no statutory recognition in the assessment of DAs pursuant to the Environmental Planning and Assessment Act, 1979 (EP&A Act).

131. An assessment of the proposal has been carried out against the provisions of the Interim Policy as set out in the following table.

Table 7: Interim Policy Compliance Table

Interim Policy – Georges River DCP 2020
Standard	Proposed	Complies
*Site Frontage*
20m	60.96m to Wyuna Street	Yes
*Building Height*
The relevant LEP controls relating to building height will prevail over DCP controls that relate to height in storeys	The proposal exceeds the height control but is supported by the provision of a Clause 4.6 Statement. This statement is considered to be well founded and discussed in detail earlier in this report.	Yes
*Private Open Space*
The ADG requirements prevail over the DCP controls for private open space	The proposal is fully compliant with the ADG’s private open space requirements. Refer to “4E – Private Open Space and Balconies” within the ADG Compliance Table above.	Yes
*Communal Open Space*
The ADG requirements prevail over the DCP controls for COS	The proposal is considered to comply with the requirements of the ADG with respect to COS. Refer to “3D – Communal Open Space” within the ADG Compliance Table above.	Yes
*Parking*
In accordance with 'A Plan for Growing Sydney' (Department of Planning and Environment): · If located in a strategic centre (ie Kogarah CBD and Hurstville CBD) and within 800m of a Railway, the “Metropolitan Regional Centre (CBD)” rates apply. · If located within 800m of a railway and outside the strategic centres the “Metropolitan Subregional Centre” rates apply. · If located outside of 800m of a Railway, the relevant DCP applies.	The KDCP parking requirements need to be satisfied as the site is not located near a railway station or close to a commercial centre in accordance with the ADG provisions.	Proposal satisfies the numerical requirements of the KDCP
*Solar Access*
The ADG requirements prevail over the DCP controls for solar access	The proposal is acceptable on merit with the ADG Solar Access requirements as detailed within the ADG Compliance Table above. Refer to “4A – Solar and Daylight Access” within the ADG Compliance Table.	Yes

Draft Amendment to Part C2 – Medium Density Development of Kogarah DCP 2013

132. Arising from the significant increase in development activity as a result of the New City Plan (Amendment No 2) to the Kogarah Local Environmental Plan gazetted in May 2017 which permitted greater density (2.5:1 and 2:1) and height (21m), Council immediately proceeded to prepare an amendment to Part C of the Kogarah Development Control Plan for the area generally bounded by the Princes Highway, Stubbs Street/Poulton Avenue and Wyuna Street, Beverley Park, and Park Road and John Street, Kogarah Bay as a first priority and as a second priority, the west side of the Princes Highway from Jubilee Avenue to Park Road which is in part High Density B6 zone and in part High Density B2 zone. The report is to address, but not limited to the following matters:

“(a) i. Site isolation and amalgamation

ii. Vehicular access, parking and circulation

iii. Traffic impact

iv. Landscape character

v. Proposed building envelopes that provide a transition/interface to the land zoned R2 at the rear of these high density zones, which allow for a stepping down to a 9m height limit to the rear of developments that back onto R2 residential zones.

vi. Impact on Heritage Item I3 “Sunnyside” at 186-188 Princes Highway

(b) That prior to the report being presented to Council that a briefing be provided to Councillors.

(c) That the General Manager prepare a report on the outcomes of the traffic assessment that is currently underway for the areas that were up-zoned under the New City Plan (Amendment No 2) to the Kogarah Local Environmental Plan gazetted in May 2017.”

133. Council has engaged Consultants to prepare a new Development Control Plan 2020 which will consolidate and harmonise existing controls and establish appropriate new controls to assist with redevelopment for up zoned sites.

In summary the development of the DCP will involve five (5) stages;

· Stage 1 Community Participation Plan

· Stage 2 General and Industrial

· Stage 3 Residential Precincts

· Stage 4 Business Precincts

· Stage 5 Specific Sites and Localities

134. Stage 3 aims to review and establish controls across different precincts and categories of residential developments (residential flat building’s, multi-dwelling housing, dwelling houses, dual occupancy’s etc). The first task within this stage is to look at medium density development within R3 zoned areas. Nine (9) precincts have been identified for specific attention, as they have been up zoned and the current controls in the Development Control Plans are outdated and not reflective of the scale and form that is permitted under the Local Environmental Plans. The subject site falls within the Kogarah Bay Precinct (No.9) refer to Figure 21 below.

Figure 21: Map highligting the nine (9) R3 precincts within the LGA that are being considered in accordance with the DCP review

135. One of the key identified areas of concern relate to there being no current controls which consider the interface of new larger developments and their treatment and transition to lower scale residential zones, that adjoin these area, predominantly zoned R2 having 9m and 12m height limits.

136. Council on 25 November 2019 adopted a report which will result in an amendment to Part C2 – Medium Density Housing in Kogarah DCP 2013. This amendment will be on public exhibition from 20 January 2019. As such this draft amendment is now a statutory planning document it must be considered in any assessment.

Table 8: Draft Amendment to Part C2 - Medium Density Development of Kogarah DCP 2013 Compliance Table

Draft Amendment to Part C2- Medium Density Development of Kogarah DCP 2013
Part 1 Residential Flat Buildings
Required	Proposed	Complies
*1. Minimum site requirements*
1000sqm minimum lot size 24m minimum frontage	2615sqm 60.96m	Yes Yes
*2. Site isolation and amalgamation*
Adjoining sites not to be left isolated. Site amalgamation requirements apply for specific sites.	The proposal does not cause any site isolation. The site is not subject to any amalgamation requirement.	Yes N/A
*3. Building Setbacks*
Front setbacks Up to four (4) storeys – 5m Above four (4) storeys – 8m Ground floor private open space may encroach up to 2m into the 5m front setback leaving a min 3m of landscaped area to the street. .	Front setback from Wyuna Street ranges from 2.33m (unit AG06) to 4.17m (Unit BG01) to the private courtyards of the ground floor units. On balance the intent behind this control is achieved. The four storey podium and upper level along Wyuna Street is setback 6.7m to the balconies and 9.1m to the external wall of units A404 and B401 and 8.06m to the centrally located units A401 and B403. These are considered to be minor variations to the draft controls and the provide elements that provide some articulation and enhance privacy between dwellings.	No. The setback in this case is considered satisfactory as it is generally in context with the front setbacks of the existing dwelling houses. It is also envisaged that it will be consistent with the future and desired street setbacks for this side of the street in the up-zoned area.
Private open space and balconies must comply with Part 4E of the ADG.	Complies	Yes
Side boundary setbacks Up to four (4) storeys – 6m Ground floor private open space may encroach up to 3m into the side and rear setbacks leaving a min 3m landscaped buffer	The ground floor units on the south western side provide a 4.5m side setback from courtyards with the north eastern side setback from courtyards being between 2.6 and 2.77m. Both these private courtyards have external planter boxes which provide separation and screening between properties On levels 1-3, a 4.5m setback is provided to the southwest and northeast side boundary at the rear of each building, with a 6m setback provided to the balconies of the front units. The winged walls which are centrally located are setback 3.17m from the side boundary (highlighted).	No. The building is setback between 4.5m and 6m to levels 1- 3 with the exception of the angled wall on levels 1 – 3. This winged wall provides articulation to the external wall. Level 4 is setback 9m from the side boundary. With respect to side setbacks the development generally meets the objectives of the SEPP 65 separation distances which are considered to be satisfactory. SEPP 65/ADG
Above four (4) storeys – 9m	9m setback provided to the south west and north east side boundaries.	Yes
Rear boundary setbacks Up to four (4) storeys – 6m Ground floor	5.5m approximately Centrally located ground floor units are located >15m from rear boundary.	External wall is located between 7.15m and 8.2m from rear boundary and given the centrally located units behind the communal open space are >15m, on balance this is acceptable.
Up to four (4) storeys – 6m Levels 1-3	6m	Yes with exception of planter boxes behind balcony.
Above four (4) storeys – 9m	9m	Yes
Private open space and balconies must comply with Part 4E of the ADG.	Complies	Yes
*4. Basement Setbacks*
3m from site boundaries South West North East	3.027m 4.5m 1.62m – 3.82m 0.798m	Yes Yes No No
Basement setback areas are to be deep soil areas as defined in the ADG	The basement setback areas provided are deep soil.	Yes
Driveways and crossings are to be located a minimum of 1.5m from a side boundary	1.78m	Yes
*5. Façade Treatment and Street Corners*
Building facades to be clearly articulated with high quality materials and finishes. Modulation and articulation in the building form to be explored. Large areas of blank, minimally or poorly articulated walls are not acceptable. Façade treatments such as wall cladding and green walls should be considered as alternatives. Clear glazing balustrades to be avoided where they are visible from the public domain.	Satisfactory Satisfactory Satisfactory Satisfactory	Yes Yes Yes Yes
*6. Landscaped area and Private Open Space*
A minimum 10% of the site is to be landscaped area that is not impeded by buildings or structures above or below ground level with a minimum dimension of 2m on two axes.	Deep Soil zone provided is 9.4%. Again the provisions of SEPP 65 override the DCP provisions.	No - However SEPP65/ADG provisions prevail.
Private open space to be adjacent to and visible from the main living area/dining rooms and be accessible	Provided	Yes
Private open space and balconies must comply with Part 4E of the ADG	Complies	Yes
*7. Common Open space*
Common Open Space to be a minimum of 25% of the site area with a minimum dimension of 5m.	Communal open space provided is 666sqm (25.4%) with a minimum 5m dimension.	Yes
A maximum of 50% of common open space may be provided above ground level.	Roof top communal open space is 356sqm, which is more than 50% of the total common open space	No but considered acceptable, the DCP provision is more onerous than the SEPP65/ADG provisions. The SEPP65/ADG provisions prevail.
At least 50% of the required common open space area is to receive 2 hours of direct sunlight between 9am and 3pm on 21 June.	Complies	Yes
A minimum of 50% of the total area of common open space provided at ground level is to comprise unpaved landscape area.	Complies	Yes
The useable and trafficable area of any rooftop common open space is to be setback a minimum of 2.5m from the edge of the roof of the floor below with landscape planters to prevent overlooking.	Complies	Yes
Roof top open space areas should include equitable access.	Equitable access through a lift and ramps have been provided along with an accessible toilet.	Yes
Ancillary structures such as lift overruns and staircases should be centralised to reduce their visual dominance.	Fire stairs and lift over runs are centrally located.	Yes
*8. Solar Access*
Where the neighbouring properties are affected by overshadowing, at least 50% of the neighbouring existing primary private open space or windows to main living areas must receive a minimum of 3 hours sunlight between 9am–3pm on the winter solstice (21 June)	From 9am until 12noon the development will overshadow the front and rear yards of 13, 15 and 17 Wyuna Street with the worst affectation at 9am. By 12noon these properties are unaffected. From 1pm until 3pm the development will overshadow the front yards of the dwellings on the southern side of Wyuna. From 9am until 1pm these properties are unaffected by the building.	Yes
*9. Vehicular access, parking and circulation*
Car parking to be provided in accordance with Part B4 unless objective 3J-1 of the ADG applies.	Development complies with the KDCP numerical parking requirements.	Yes
Car parking layout and vehicular access complies with AS2890.1-2004	Complies.	Yes
All residential flat buildings to provide car wash bay	A visitor car wash bay has been provided. The KDCP allows for a visitor space to double as a car wash bay.	Yes
*10. Views and view sharing*
Provide for reasonable sharing of views	The location does not have significant views. The development generally complies with height requirements and is reasonable in terms of view sharing.	Yes
*11. Dwelling Mix*
Dwellings that propose more than 20 dwellings are to provide a mix of dwellings as follows: Studio apartments -15% max 1 bed apartments - 30% max 2 bed apartments – 40% min 3 bed apartments – 15% min	The proposal includes the following unit mix: 16 x 1 bedroom apartments = 25% 36 x 2 bedroom apartments = 56% 12 x 3 bedroom apartments = 19%	No The proposal provides a mix of 1, 2 & 3 bedroom apartments. It however does not propose to provide any studio apartments.
*12. Adaptable and accessible housing*
51+ units – 6 adaptable units + 10% of additional units beyond 60 (rounded up to the nearest whole number 64 units proposed – 7 adaptable units required Every adaptable unit needs to have an accessible car space.	Sixty four (64) units are proposed which requires that seven (7) adaptable units are provided. Seven (7) adaptable units are proposed with provision for accessible parking.	Yes Yes

DEVELOPER CONTRIBUTIONS

137. The proposed development would require payment of developer contributions under Section 7.11 of the Environmental Planning and Assessment Act 1979. If the development consent is granted a condition outlining the required contributions will be imposed.

138. The table below shows the contributions which are applicable for this development. A condition is imposed if consent is issued that reflects the contributions as stated.

Kogarah Section 94 Contribution Plan No.1 – Road and Traffic Management – Residential	$12,259.67
Kogarah Section 94 Contribution Plan No.5 – Open Space	$620,515.96
Kogarah Section 94 Contribution Plan No.9 – Kogarah Libraries – Books	$10,189.72
Kogarah Section 94 Contribution Plan No.9 – Kogarah Libraries – Building	$14,291.75
Total Development Contributions payable	$657,257.10

Figure 18: Section 7.11 Contributions as calculated by Council for this development.

IMPACTS

Natural Environment

139. The proposed development will not adversely affect the natural environment subject to the site being planted with replacement trees as shown on the approved landscape plan. The removal of existing trees has been reviewed by Council’s Consultant Arborist and is deemed acceptable. The landscape plan demonstrates that nineteen (19) trees and shrubs will be planted. A condition of consent will also be imposed requiring the panting of six (6) new street trees to be planted along the frontage of the site.

140. The proposal includes excavation that has been assessed as being reasonable in the context of the site and consistent with the extent of excavation expected in an R3 Medium area that has seen uplift in building height and FSR, ie to permit construction of basement car parking. Excavation impacts will be managed with standard conditions of consent have been imposed to protect the environment with respect to contamination and impact onto adjoining allotments and the public domain.

Built Environment

141. The proposal represents a good planning outcome for the site with respect to its bulk, scale and density, façade articulation and expression and is an appropriate response to the context of the site and its R3 Medium Density Residential zoning.

142. The buildings four (4) storey podium with recessed fifth and sixth levels will also ensure that it has an appropriate relationship with the lower scaled R2-zoned residential properties on the opposite side of Wyuna Street, and will provide a reasonable transition between those R2 zoned dwelling houses and future six (6) and seven (7) storey mixed use development fronting Princes Highway behind the site.

Social Impact

143. No adverse social impacts have been identified as part of the assessment. The proposed development, in principle, will cater for a cross-section of the community and will assist with providing for additional housing in the area. The construction of residential apartments on the site is consistent with the residential zoning of the land.

Economic Impact

144. There is no apparent adverse economic impact that is likely to result within the locality due to the construction of additional apartments. The construction of these apartments was to be reasonably expected as a result of the New City Plan’s gazettal. The impact of new development on nearby property values is not a matter for consideration under Section 4.15 of the Environmental Planning and Assessment Act 1979. It is likely there will be a small positive economic impact as a result of the construction of the development.

Suitability of the site

145. The site is zoned R3 – Medium Density Residential. The proposal is a permissible form of development in this zone and has been designed to fit into the context of the area as it evolves and as it exists. This immediate precinct is going through a process of change and transition and the proposal is in line with the intentions of Council’s recent up-zoning of these sites.

SUBMISSIONS AND THE PUBLIC INTEREST

146. The application was neighbour notified in accordance with Kogarah DCP 2013 for a period of fourteen (14) days between 12 December 2018 until 13 February 2019. Amended plans were notified between 4 and 18 September 2019. A total of thirty three (33) submissions were received as a result of both these notification periods. In summary the following issues and concerns were raised.

· Noise and inconvenience from construction activity (increased traffic, limited car parking and pressure on existing services)

147. Officer Comment: If consent is granted a condition will require the Developer/Builder to prepare a detailed Construction Management Plan (CMP) to ensure Construction vehicles and associated building activity and works are planned and managed appropriately to minimise noise, pollution and environmental impacts from construction. This is a standard condition and as much as it is expected that some building and construction activity will cause a neighbourhood inconvenience, if well managed the impacts are reduced.

There will be an increased number of vehicle movements given the increase in density, this was envisaged by the up-zoning. The development complies with the floor space ratio and the landscaped area requirements of the apartment design guide.

Conditions have been imposed regarding servicing of the site. It is considered the services can be extended to service the development.

· Non-compliance with the height limit

148. Officer Comment: The amended design reduces the overall height of the development apart from the ancillary rooftop structures including the lift overrun, staircase and WC which exceed the height control. The introduction of the rooftop terrace is consistent with the character of new larger scale developments in the area as these spaces are centralised and reduce any potential for overlooking.

Council has allowed for exceedances in the height control for ancillary rooftop structures as these are not habitable areas and often are centralised and will not create any adverse environmental impacts to adjoining properties. The hours of usage and the method of usage of this space is controlled by a condition of consent. The exceedance in the height control is considered to be consistent with the precedent established by new developments within the immediate vicinity of the site and new developments ie 5-9 John Street and 198-200 Princes Highway (DA2017/0655).

· Out of character with the existing locality and existing smaller scale adjoining developments

149. Officer Comment: Although it is recognised that this development will be taller than the existing residential developments to the south which are zoned R2 and have a maximum height of 9m, the development has been amended to provide a better and more sympathetic scale and relationship by removal of the attic level and provision of a centralised roof top communal open space area and also a better interface at the front to the lower scale properties located along Wyuna Street. The provision of a four storey podium facing Wyuna Street with the upper levels setback a further 2m, the recessing of the upper levels provides a more appropriate transition between the two distinct zonings.

The up-zoning of this precinct did not include a transition between the 21m height control and the 9m height control. Draft amendment to Part C2 of Kogarah DCP 2013 was endorsed by Council on 25 November 2019. This amendment will be on public exhibition from 20 January 2020. The proposed development has been assessed against these draft controls and is generally consistent with the intent and objectives of these draft controls.

· Overshadowing created to properties to the south

150. Officer Comment: This issue has been addressed in detail earlier in this report. The proposal complies with the minimum solar access provisions of the KDCP and the ADG. The development affects the properties to the west up until 12pm whilst the properties to the south across the street are only impacted after 1pm and are not affected in the morning as shadows are cast to the west.

· Increased traffic generation from the cumulative impact of larger scale developments

151. Officer Comment: The application was accompanied by a Traffic assessment report prepared by Terraffic Pty Ltd Traffic and Parking Consultants. Traffic generation caused by the development has been considered in accordance with the provisions of RMS Guide to Traffic Generating Developments, Section 3 – Land Use Traffic Generation and based the calculations on a high density residential flat development. This issue was discussed in greater detail earlier in this report. It is recognised the development will generate some additional pressure on the local road network, however the impact is not considered to be adverse or detrimental to warrant the refusal of the application.

· Adverse impact on street parking

152. Officer Comment: There will be an increase in the demand for on-street parking however this is public parking and is available for the community at large. The benefit the development will have is by making four (4) driveway crossovers along Wyuna Street redundant and reinstating 2-3 on-street car parking spaces. This may not totally compensate for the demand, but it will increase on street car parking nonetheless. The development also has the benefit of a very long street frontage to Wyuna Street.

The proposal complies with the number of required car parking, which provides thirteen (13) visitor spaces.

· Increased and undue pressure on existing services such as schools and associated local amenities and infrastructure

153. Officer Comment: Council identified the subject sites to be up-zoned and recognised that given the sites location adjoining a busy arterial road increased density can be accommodated within these sites. The form of development along Princes Highway is changing and new larger scale developments are being constructed in accordance with the updated planning controls. The proposal is in keeping with the intended scale and form of future development. There is no primary evidence to suggest that local amenities such as schools etc. are at capacity and will not be able to cater for additional/new residents. Conditions have been imposed for utilities to be consulted as part of the Construction certificate preparation for the extension of servicing of the development.

· Unsympathetic impact upon existing heritage item “Sunnyside” located at 184 Princes Highway

154. Officer Comment: The proposed development is located within Wyuna Street and does not adjoin the heritage item located on the Princes Highway. Given its separation from the heritage item and that other developments will adjoin this item, they will have to provide a design that is respectful and the most appropriate transition, setback and relationship to the Heritage Item.

· One driveway exit/entry point will create traffic issues onto Wyuna Street

155. Officer Comment: The assessment undertaken revealing it is unlikely that the development will create any adverse impacts on Wyuna Street as vehicles leaving the site will have many options to disperse ie vehicles can turn right or left and take a number of different routes. The driveway is wide enough, approximately 5.5m; to allow for two cars to pass each other and therefore no queuing along the street should occur due to the vehicular arrangement proposed.

· Increased overlooking and noise from the rooftop terrace area

156. Officer Comment: The plans were amended from the original design, removing the non-compliant habitable spaces on the seventh floor and providing a roof top communal open space consistent with the recommendations of the Design Review Panel. The ADG also encourages the use of rooftops for communal open space in medium to larger scale developments as these spaces offer another option for passive recreational areas which are private and minimise impacts if they are small spaces and centrally located. The roof top communal open space area is centrally located to minimise overlooking and assist in maintaining privacy along with perimeter planter boxes to assist in providing screening. A condition of consent has been imposed requiring a Plan of Management restricting the number of occupants using the space and the hours in which it is used to address amenity concerns.

· Inadequate local services

157. Officer Comment: The location of the development enables access to connecting roads, buses along the Princes Highway, local parks and shopping spaces and community facilities.

· Inappropriate bulk and scale of the development will dominate the lower scale developments along Wyuna Street

158. Officer Comment: The proposed development is within the maximum FSR and gross floor area that is permitted on such a larger integrated site.

The issue of transition to the rear has been discussed and the setback of the upper levels of the building will be generally consistent with recently approved developments along John Street. These developments have established a future direction and precedent for development in the immediate area. The four storey podium element along Wyuna Street is consistent with the design intent of Council’s Draft Amendment to Section C2 – Medium Density Development of Kogarah DCP 2013.

· The predictions made in the Traffic and Parking Assessment report are uncertain and doubtful

159. Officer Comment: The Traffic Report has been prepared by a Qualified Traffic Consultant and calculations are based on the RMS Guide to Traffic Generating developments in respect to traffic generation which are the standards which are required to be used for this form of development. Parking numbers are compliant with the KDCP provisions and the car parking arrangement and design has been considered by Council’s Traffic Engineer who does not raise any objection to the proposed works and states that the proposed development is generally compliant with AS2890.

· Against the design quality principles of the SEPP 65

160. Officer Comment: The development generally complies with the provisions of the ADG. Table 3 within this report outlines compliance with the key provisions and controls.

· Poorly designed and will create overlooking from windows and balconies and internal spaces. Eastern side of Wyuna Street

161. Officer Comment: The main areas of concern for overlooking are to the north, east and west. Overlooking and privacy concern has also been raised by properties across the road in Wyuna Street to the south. The separation distances along the northern side (rear boundary) are compliant having a minimum of 6m and 9m at upper levels. The eastern and western side boundaries provide setbacks of approximately 4.5m at the lower levels with a 9m setback provided to the upper levels. The lower levels provide a series of highlight windows and blank walls along with planter boxes and screen planting to provide a level of privacy to be afforded between properties. It is likely adjoining properties to the east and west will be redeveloped and they will also include separation distances of a minimum of 6m creating a 12m separation between buildings. Many apartments along the side elevations have their bedrooms located to face south and as these spaces are not as intensively utilised as living spaces it is unlikely that they will generate detrimental amounts of direct overlooking. In addition, new street trees and landscaping along the side and rear boundaries will reduce the potential for overlooking at lower levels and will assist in screening these levels. Along the southern side, the building is setback between 5m to the external wall and then 8m to 9m to the external wall at the upper levels and combined with the roadway (Wyuna Street) separation between properties is considered acceptable exceeding the 12m separation distance.

· Depreciation in property values

162. Officer Comment: This is not a matter for consideration under the Environmental Planning and Assessment Act 1979.

· DA deferred until a separate DCP is prepared for the site and adjoining properties that have been up-scaled.

163. Officer Comment: Council is in the process of updating its Local Environmental Plans and associated planning controls (DCP’s) and most recently the Draft amendment to Part C2 of Kogarah DCP 2013 was endorsed by Council on 25 November 2019. This amendment will be on public exhibition from 20 January 2020. The proposed development has been assessed against these draft controls and is generally consistent with the intent and objectives of these draft controls. In addition, the Applicant has worked with Council for over a year to negotiate a planning and urban design outcome within the current applicable planning controls at the time of lodgement. The new building is sited in a way that generally satisfies SEPP65/ADG and seeks to minimise environmental concerns for immediately adjoining developments. It is considered to be a reasonable planning and design outcome.

· Noise from the use of external spaces including balconies at upper levels.

164. Officer Comment: It is unlikely that there will be adverse and unreasonable acoustic impacts from upper level balconies. These spaces are secondary to key habitable areas. They have been sited and located to comply with separation distances as stipulated in by SEPP65/ADG (6m and 9m respectively).

· Only one set of fire stairs provided

165. Officer Comment: The development will need to satisfy the provisions of the BCA in relation to fire safety.

· The proposed development is not cheap/affordable housing

166. Officer Comment: The proposed development is for the construction of a residential flat building; it has not been lodged or assessed against the provision of affordable housing.

REFERRALS

Council Referrals

Development Engineer

167. The application was originally referred to Council’s Development Engineers Services for comment. There were concerns raised in respect to the stormwater and drainage arrangement. The following comments were made;

168. Amended hydraulic plans were submitted to Council in July 2019 and referred back to Council’s Engineers for comment. They are now satisfied with the stormwater drainage arrangement subject to the imposition of conditions.

Traffic Engineer

169. The application was referred to Council’s Traffic Engineer for comment. The proposed car parking and access arrangements are considered to be compliant with Council’s controls and are satisfactory. Standard conditions are included to ensure compliance will be achieved with Australian Standards during and after construction.

Environmental Health Officer

170. Council’s Environmental Health Officer has raised no objection subject to conditions of consent being attached if approval is granted.

Waste Services

171. The application was referred to Council’s Waste Officer for comment. No objection was raised in respect to the proposed waste arrangement subject to the imposition of standard conditions.

External Referrals

Ausgrid

172. The application was referred to Ausgrid in accordance with Clause 45 of State Environmental Planning Policy (Infrastructure) 2007. At the time of writing, no response has been received.

Sydney Airport

173. The application was referred to Sydney Airport. A formal response was provided and concurrence was obtained.

CONCLUSION

174. The proposal has been assessed using the matters for consideration listed in Section 4.15 of the Environmental Planning and Assessment Act 1979. The proposal is considered to be a reasonable intensification of site and the proposed additional scale, bulk and height is considered to be an acceptable planning and design outcome for this site and will be consistent with the desired future character of development in the R3 zoned land in this location and immediate locality.

175. The proposal has been assessed against the provisions of the Kogarah Local Environmental Plan 2012 and Kogarah Development Control Plan 2013. The proposal satisfies the key planning controls in the Kogarah Local Environmental Plan apart from exceeding the height limit. A Clause 4.6 Statement has been submitted with the application justifying the variation in this case.

176. The proposed development design satisfies the objectives of both the height control and the zone and the Clause 4.6 Statement is considered to be well founded as there will not be any direct or adverse environmental impacts generated, the proposal satisfies the requirements of Clause 4.6 of the KLEP.

DETERMINATION AND STATEMENT OF REASONS

177. The reasons for this recommendation are:

· The proposal is an appropriate response to the “up-zoning” of the site (including increased Floor Space Ratio and height limits) afforded by the Kogarah “New City Plan”. The six (6) storey building will provide an effective transition between future six (6) and seven (7) storey development facing the Princes Highway and two (2) storey low density residential on the opposite side of Wyuna Street

· The proposed development complies with the requirements of the relevant environmental planning instruments and development control plan except in the height of the development which is considered acceptable having regard to the justification provided in the report above.

· In this case the Clause 4.6 Statement is considered to be well founded and the non-compliance with the height control is reasonable in the circumstances of the case.

· The proposal generally achieves compliance with the Apartment Design Guide with respect to both internal and external amenity. Building separation requirements in particular are for the most part compliant and where numerically non-compliant, visual privacy impacts will be mitigated by the use of screening and other appropriate measures.

· The proposed design has been sensitively considered to be consistent with the anticipated desired future character for development in this area.

· The proposal has effective façade modulation and wall articulation that will serve to provide visual interest and reduce the bulk of the building.

· The proposal aims to provide a high-quality building that will establish a positive urban design outcome, setting the architectural and planning precedent in the area.

178. THAT pursuant to Section 4.16(1) of the Environmental Planning and Assessment Act, 1979, as amended, the Georges River Local Planning Panel, grants development consent to Development Application DA2018/0516 for site consolidation, tree removal demolition of existing structures and construction of a six (6) storey Residential Flat Building development comprising sixty four (64) residential units with basement car parking and associated landscaping and site works on Lots 10, 11 and 12 DP 7056 and Lots A and B DP 382055 known as 5–11A Wyuna Street, Beverley Park, subject to the following conditions of consent:

GENERAL CONDITIONS

1. Approved Plans - The development will be implemented in accordance with the approved plans and supporting documentation listed below which have been endorsed by Council’s approved stamp, except where marked up on the plans and/or amended by conditions of this consent:

Description	Reference No.	Date	Revision	Prepared by
Site Analysis/Site Plan	DA002	25/8/2019	C	PBD Architects
Site Plan	DA005	25/8/2019	C	PBD Architects
Basement 2 Floor Plan	DA100	26/4/2019	B	PBD Architects
Basement 1 Floor Plan	DA101	26/4/2019	B	PBD Architects
Ground Floor Plan	DA102	25/8/2019	C	PBD Architects
Typical L1-3 Floor Plan	DA103	25/8/2019	C	PBD Architects
L4 Floor Plan	DA104	25/8/2019	C	PBD Architects
L5 Floor Plan	DA105	25/8/2019	C	PBD Architects
Roof Plan	DA106	25/8/2019	C	PBD Architects
Elevation North	DA201	25/8/2019	C	PBD Architects
Elevation South	DA202	25/8/2019	C	PBD Architects
Elevation East	DA203	25/8/2019	C	PBD Architects
Elevation West	DA204	25/8/2019	C	PBD Architects
Sections AA & BB	DA301	26/4/2019	B	PBD Architects
Sections CC & DD	DA302	26/4/2019	B	PBD Architects
Landscape Plans	L/00, L/01, L/02, L/03, L/04 and L/05	22/11/2018	D	ATC A Total Concept

SEPARATE APPROVALS REQUIRED BY OTHER LEGISLATION

2. Section 138 Roads Act 1993 and Section 68 Local Government Act 1993 – Unless otherwise specified by a condition of this consent, this Development Consent does not give any approval to undertake works on public infrastructure.

Separate approval is required under Section 138 of the Roads Act 1993 and/or Section 68 of the Local Government Act 1993 for any of the following activities carried out in, on or over a public road (including the footpath) listed below. This approval is to be obtained from RMS.

An application is required to be lodged and approved prior to the commencement of any of the following works or activities;

(a) Placing or storing materials or equipment;

(b) Placing or storing waste containers or skip bins;

(d) Swinging or hoisting goods over any part of a public road by means of a lift, crane or the like;

(e) Pumping concrete from a public road;

(f) Pumping water from the site into the public road;

(g) Constructing a vehicular crossing or footpath;

(h) Establishing a “works zone”;

(i) Digging up or disturbing the surface of a public road (e.g. Opening the road for the purpose of connections to utility providers);

(j) Stormwater & ancillary works in the road reserve; and

(k) Stormwater & ancillary to public infrastructure on private land

(l) If any excavation is to be supported by the use of below ground (cable) anchors that are constructed under Council’s roadways/footways.

These separate activity approvals must be obtained and evidence of the approval provided to the Certifying Authority prior to the issue of the Construction Certificate.

The relevant Application Forms for these activities can be downloaded from Council’s website www.georgesriver.nsw.gov.au. For further information, please contact Council’s Customer Service Centre on (02) 9330 6400.

3. Below ground anchors - Information to be submitted with S68 Application under LGA 1993 and S138 Application under Roads Act 1993 - In the event that the excavation associated with the basement carpark is to be supported by the use of below ground (cable) anchors that are constructed under Council or RMS roadways/footways, an application must be lodged with Council or RMS under Section 68 of the Local Government Act 1993 and the Roads Act 1993 for approval, prior to commencement of those works.

The following details must be submitted:

(i) That cable anchors will be stressed released when the building extends above ground level to the satisfaction of Council;

(ii) The applicant has indemnified council from all public liability claims arising from the proposed works, and provide adequate insurance cover to the satisfaction of Council.

(iii) Documentary evidence of such insurance cover to the value of $20 million;

(iv) The applicant must register a non-terminating bank guarantee in favour of Council. An amount will be determined when the application is lodged;

(v) The guarantee will be released when the cables are stress released. In this regard it will be necessary for a certificate to be submitted to Council from a structural engineer at that time verifying that the cables have been stress released.

(vi) In the event of any works taking place on Council’s roadways/footways adjoining the property while the anchors are still stressed, all costs associated with overcoming the difficulties caused by the presence of the ‘live’ anchors will be borne by the applicant.

4. Vehicular Crossing – Major Development - The following vehicular crossing and road frontage works will be required to facilitate access to and from the proposed development site:

(a) Construct a 1.2m wide footpath for the full length of the frontage of the site on Wyuna Street in accordance with Council’s Specifications applying at the time construction approval is sought.

(b) The thickness and design of the driveway shall be in accordance with Council’s Specifications applying at the time construction approval is sought.

(c) Any existing vehicular crossing and/or laybacks which are redundant must be removed. The kerb and gutter, any other footpath and turf areas shall be restored at the expense of the applicant. The work shall be carried out in accordance with Council’s specification, applying at the time construction approval is sought.

Constructing a vehicular crossing and/or footpath requires separate approval under Section 138 of the Roads Act 1993, prior to the commencement of those works.

5. Road Opening Permit - A Road Opening Permit must be obtained from Council and/or RMS for every opening of a public road reserve to access services including sewer, stormwater drains, water mains, gas mains, and telecommunications before the commencement of work in the road.

REQUIREMENTS OF CONCURRENCE, INTEGRATED AND OTHER GOVERNMENT AUTHORITIES

6. Sydney Water – Tap in TM - The approved plans must be submitted to a Sydney Water Tap inTM to determine whether the development application will affect Sydney Water’s sewer and water mains, stormwater drains and/or easements, and if further requirements need to be met. The approved plans will be appropriately endorsed. For details please refer to ‘Plumbing, building and developing’ section of Sydney Water’s web site at www.sydneywater.com.au then see ‘Building’, or telephone 13000 TAP IN (1300 082 746). The Certifying Authority must ensure that a Tap inTM agent has appropriately stamped the plans prior to the issue of the Construction Certificate.

7. Notice of Requirements for a Section 73 Certificate - A Notice of Requirements of what will eventually be required when issuing a Section 73 Compliance Certificate under the Sydney Water Act 1994 must be obtained from Sydney Water Corporation.

Application must be made through an authorised Water Servicing Co-ordinator. Please refer to the ‘Plumbing, building and developing’ section of the web site www.sydneywater.com.au then refer to ‘Providers’ under ‘Developing’ or telephone 13 20 92 for assistance.

Following application, a ‘Notice of Requirements’ will advise of water and sewer infrastructure to be built and charges to be paid. Please make early contact with the Co-ordinator, as it can take some time to build water/sewer pipes and this may impact on other services and building, driveway or landscape design.

The Notice of requirements must be submitted prior to the commencement of work. A Section 73 Compliance Certificate will be required at the completion of development in accordance with further conditions.

8. Electricity Supply - An application is required to be made to Ausgrid for a network connection. This may require the network to be extended or its capacity augmented. Evidence of this application being lodged with Ausgrid is required to be provided to the Certifying Authority prior to the issue of a Construction Certificate. For further details, you are advised to contact Ausgrid on 13 13 65 or www.ausgrid.com.au (Business and Commercial Services).

9. Electricity Supply to Development – The electricity supply to the development must be underground.

PRIOR TO THE ISSUE OF A CONSTRUCTION CERTIFICATE

10. Fees to be paid - The fees listed in the table below will be paid in accordance with the conditions of this consent and Council’s adopted Fees and Charges applicable at the time of payment (available at www.georgesriver.nsw.gov.au).

Payments will be made prior to the issue of the Construction Certificate or prior to the commencement of work (if there is no associated Construction Certificate).

Council will only accept Bank Cheque or Electronic Funds Transfer (EFT) for transaction values of $500,000 or over. Council will be contacted prior to payment to determine correct total amount to be paid and bank account details (if applicable).

A summary of the fees to be paid are listed below:

Fee Type	Fee
GENERAL FEES
Long Service Levy (to Long Service Corporation) Or, provide evidence of Payment direct to the Long Service Corporation. See https://portal.longservice.nsw.gov.au/bci/levy/
Builders Damage Deposit (footpaths and roadworks)	$75,346.56 (calculation based on $1,236.00 per metre of street frontage, Wyuna Street so 60.96m)
Inspection Fee for Refund of Damage Deposit (minimum of two (2) inspections at $371 per inspection	$742.00
DEVELOPMENT CONTRIBUTIONS
Kogarah Section 94 Development Contributions Plan No.1 - Roads and Traffic Management - Residential	$12,259.67
Kogarah Section 94 Development Contributions Plan No.5 – Open Space	$620,515.96
Kogarah Section 94 Development Contributions Plan No.9 - Kogarah Libraries - Books	$10,189.72
Kogarah Section 94 Development Contributions Plan No.9 – Kogarah Libraries - Building	$14,291.75
Total S94 Contribution	$657,257.10

General Fees

The fees and charges above are subject to change and are as set out in the version of Council's Schedule of Fees and Charges or as required by other Government Authorities, applicable at the time of payment.

Development Contributions

The Section 7.11 contribution is imposed to ensure that the development makes adequate provision for the demand it generates for public amenities and public services within the area.

Indexation

The above contributions will be adjusted at the time of payment to reflect changes in the cost of delivering public amenities and public services, in accordance with the indices provided by the relevant Section 94 Development Contributions Plan.

Timing of Payment

The contribution will be paid and receipted by Council prior to the release of the Construction Certificate.

Further Information

A copy of all current Development Contributions Plans may be inspected at Council’s offices or viewed on Council’s website www.georgesriver.nsw.gov.au.

11. Public Domain works plan – Prior to issuing the Construction Certificate, a Public Domain Works Plan is to be prepared which shall provide details on how the public domain will be treated and landscaped. The following features are to be shown on the plan (but not limited to these);

- Footpath design and layout including materials

- Design and treatment of Council’s front verge. This shall include the planting of trees in accordance with the Landscape conditions as part of this consent.

- Location of any infrastructure services although electricity lines are recommended to be relocated below ground where possible.

- Type and area of any grass to be replaced.

- New driveway cross-overs

A detailed plan shall be provided and approved by Council’s Manager Development and Building prior to the issuing of the Construction Certificate.

12. Building services - Prior to the issue of a Construction Certificate the applicant may be required, under Clause 144 of the Environmental Planning & Assessment Regulation, 2000 to seek written comment from Fire and Rescue (FR) NSW about the location of water storage tanks, construction of hydrant/booster pump and valve rooms, and any Fire Engineered Solution developed to meet the performance requirements under the Category 2 Fire Safety Provisions.

The applicant is also advised to seek written advice from FR NSW on the location and construction of the proposed Fire Control Centre Facility and location and installation of the sites Fire Indicator / mimic Panels.

13. Above ground power lines – Where practicable, all existing overhead power lines within or adjacent to the development site shall be relocated underground to Energy Australia standards and specifications. If not practicable to relocate the power line underground, arrangements shall be made with Energy Australia to place the conduit to carry those power lines underground so that they can be utilised at a later date by Energy Australia. In this regard all associated costs shall be borne by the applicant.

Written compliance with this condition is required to be provided prior to the issuing of the Construction Certificate.

14. NBN Connection - Prior to the issue of the Subdivision or Construction Certificate in connection with a development, the developer (whether or not a constitutional corporation) is to provide evidence satisfactory to the Certifying Authority that arrangements have been made for:

(i) the installation of fibre-ready facilities to all individual lots and/or premises in a real estate development project so as to enable fibre to be readily connected to any premises that is being or may be constructed on those lots. Demonstrate that the carrier has confirmed in writing that they are satisfied that the fibre ready facilities are fit for purpose; and

(ii) the provision of fixed-line telecommunications infrastructure in the fibre-ready facilities to all individual lots and/or premises in a real estate development project demonstrated through an agreement with a carrier.

(Note real estate development project has the meanings given in section 372Q of the Telecommunications Act).

15. Damage Deposit - Major Works - In order to insure against damage to Council property the following is required:

(a) Pay Council, before the issue of the Construction Certificate, a damage deposit for the cost of making good any damage caused to any Council property as a result of the development: $75,346.56.00

(b) Pay Council, before the issue of the Construction Certificate, a non-refundable inspection fee (for two inspections) to enable assessment of any damage and repairs where required: $742.00.

(c) Submit to Council, before the commencement of work, a photographic record of the condition of the Council nature strip, footpath and driveway crossing, or any area likely to be affected by the proposal.

At the completion of work Council will inspect the public works, and the damage deposit will be refunded in full upon completion of work where no damage occurs. Otherwise the amount will be either forfeited or partly refunded according to the amount of damage.

16. Design changes - The following changes are required to be made and shown on the Construction Certificate plans:

(a) The height of the front fence along Wyuna Street shall not exceed 1.2m and shall be designed so that it is 50% transparent.

Amended plans detailing compliance with the above specifications shall be submitted to Council and shall be to the satisfaction of the Manager of Development and Building.

17. Use of Rooftop Open Space - A Plan of Management (POM) for use of rooftop open space must be submitted for approval of Council prior to the issuing of the Construction Certificate. The POM must outline the following:

(i) hours of use of the rooftop deck which shall be restricted from 8am until 10pm;

(ii) maximum number of users at any one time shall be specified (for this development a maximum of 25 at any one time is recommended) given the size of the space;

(iii) Outline provisions to maximise the safety (fire safety and general safety) for users of this area.

(iv) no amplified music to be played;

(v) identify other measures to ensure that the amenity and safety of persons within the development and in nearby existing and future development is maintained.

(vi) Location and type of signage to be installed in the building to notify residents and visitors in respect to the use of this space.

(vii) The approved POM shall be incorporated into the Owners Corporation by-laws in any future Strata subdivision and a sign in the front entry of the building shall be included to ensure the use of this space is monitored and understood by all occupants.

The POM shall be prepared and shall be to the satisfaction of Council’s Manager of Building and Development

18. Parking and Layout – The development shall comply with the following requirements;

· The layout of the proposed car parking and loading areas associated with the subject development (including, driveways, grades, turn paths, sight distance requirements in relation to landscaping and/or fencing, aisle widths, aisle lengths, and parking bay dimensions) shall be in accordance with AS 2890.1-2004, AS2890.6-2009 and AS 2890.2-2002 for heavy vehicle usage.

· Bicycle parking associated with the subject development shall be in accordance with AS 2890.3 (Bicycle Parking Facilities).

· Driveway access is to comply with figure 3.3-Minimum Sight Lines for Pedestrian Safety as per AS 2890.1:2004 of the Australian Standard for off-street car parking. Figure 3.3 specifies the minimum sight lines for pedestrian safety along a circulation driveway or domestic driveway.

· Any wall or fence or solid object on either side of the driveway/vehicular crossing where it meets the Council’s road reserve at the boundary must comply with sight distance requirements stipulated in the Australian Standards AS2890.1.

· All vehicles shall enter and exit the premises in a forward direction.

19. Parking and layout - The layout of the proposed car parking areas associated with the subject development (including, driveways, grades, turn paths, sight distance requirements in relation to landscaping and/or fencing, aisle widths, aisle lengths, and parking bay dimensions) should be in accordance with AS 2890.1- 2004, AS2890.6-2009 and AS 2890.2 – 2002 for heavy vehicle usage. Parking Restrictions may be required to maintain the required sight distances at the driveway.

20. Materials and finishes - The proposed materials and finishes selected shall be non-reflective and shall be of the highest quality minimising the need for regular maintenance.

21. Construction materials - Any proposed cladding to the building shall be constructed of fire resistant materials which comply with the requirements of the National Construction Code (NCC) 2019 Volume (1) One Building Code of Australia (BCA). Details of the proposed materials and finishes are to be detailed on the construction certificate drawings and shall be to the satisfaction of the PCA.

22. Mechanical ventilation – Any proposed mechanical ventilation system will need to satisfy Council’s requirements and those stipulated by the National Construction Code and AS1668.2-2002 and shall be in accordance with the plans and details lodged with the application and prepared by RMJ Engineering and dated 26 August 2019.

23. Low reflectivity roof - Roofing materials must be low glare and reflectivity. Details of finished external materials including colours and texture must be provided to the Certifying Authority.

24. Fire Safety Measures - Prior to the issue of a Construction Certificate a list of the essential fire safety measures that are to be provided in relation to the land and any building on the land as a consequence of the building work must accompany an application for a construction certificate, which is required to be submitted to either Council or a PCA. Such list must also specify the minimum standard of performance for each essential fire safety measure included in the list. The Council or PCA will then issue a Fire Safety Schedule for the building.

25. Construction Traffic Management Plan - A Construction Traffic Management Plan detailing:

(a) construction vehicle routes;

(b) anticipated number of trucks per day;

(d) Access arrangements; and

(e) Proposed traffic measures to minimise impacts of construction vehicles must be submitted for the approval of Council’s Engineers. Council’s Engineers must specify in writing that they are satisfied with the Traffic Management Plan prior to the issue of the Construction Certificate.

The Construction Traffic Management Plan may require approval from RMS.

26. Geotechnical report - Geotechnical Reports: The applicant must submit a Geotechnical Report, prepared by a professional engineer specialising in geotechnical engineering who holds the relevant Certificate of accreditation as required under the Building Professionals Act 2005 in relation to dilapidation reports, all site works and construction. This is to be submitted before the issue of the Construction Certificate and is to include:

(a) Investigations certifying the stability of the site and specifying the design constraints to be placed on the foundation, any earthworks/stabilization works and any excavations.

(b) Dilapidation Reports on the adjoining properties including, but not limited to (address) and (address) prior to any excavation of site works. The Dilapidation Report is to include assessments on, but not limited to, the dwellings at those addresses and any external paths, grounds etc. This must be submitted to the PCA and the adjoining residents as part of the application for the Construction Certificate. Adjoining residents are to be provided with the report five (5) working days prior to any works on the site.

(d) Measures to minimise vibration damage and loss of support to other buildings. Where possible any excavation into rock is to be carried out with tools such as rock saws which reduce vibration to adjoining buildings and associated structures. Where a hydraulic hammer is to be used within 30 metres of any building (other than a path or a fence) the report shall detail the maximum size of hammer to be used and provide all reasonable recommendations to manage impacts.

(e) Sides of the excavation are to be piered prior to any excavation occurring to reinforce the walls of the excavation to prevent any subsidence to the required setbacks and neighbouring sites.

27. Waste Storage - Residential and Mixed Use Developments - The plans shall include details of the waste storage area. The waste storage area shall not be visible from the street. The waste storage area shall be located within the lot/building in accordance with the approved plans.

The waste storage area shall be large enough to accommodate the required number of bins for the development and located in an area to suitably facilitate servicing on waste collection day.

The path to the bin room is to be at least 1.0 metres wide and kept clear and unobstructed at all times.

Residential Waste

The development will require the provision of the following waste and recycling facilities:

Domestic Waste

· 11 x 660L litre mobile bins per unit/dwelling. Domestic Recycling

· 11 x 240 litre mobile bin per 3 units/dwellings.

a. Green Waste – 1 to 2 x 240 litre mobile bins per unit block.

28. Waste room design - The waste room will contain the following to minimise odours, deter vermin, protect surrounding areas, and make it a user-friendly and safe area:

· waste room floor to be sealed;

· waste room walls and floor surface is flat and even;

· all walls painted with light colour and washable paint;

· equipment electric outlets to be installed 1700mm above floor levels;

· The bin storage rooms will be mechanically exhausted as required by AS 1668.2;

· light switch installed at height of 1.6m;

· waste rooms must be well lit (sensor lighting recommended);

· optional automatic odour and pest control system installed to eliminate all pest

· types and assist with odour reduction - this process generally takes place at

· building handover - building management make the decision to install;

· all personnel doors are hinged and self-closing;

· waste collection area must hold all bins - bin movements should be with ease of access;

· Conform to the Building Code of Australia, Australian Standards and local laws; and childproofing and public/operator safety shall be assessed and ensured.

· Occupational Health and Safety issues such as slippery floors in waste rooms and the weight of the waste and recycling receptacles will need to be monitored.

· Cleaners will monitor the bin storage area and all spills will be attended to immediately by cleaners.

This information shall be reflected on construction drawings submitted to the certifying authority.

29. Dial before your dig – The applicant shall contact “Dial Before You Dig on 1100” to obtain a Service Diagram prior to the issuing of the Construction Certificate. The sequence number obtained from “Dial Before You Dig” shall be forwarded to the Principal Certifying Authority (PCA) and Council for their records.

30. Structural details - Engineer's details prepared by a practising Structural Engineer being used to construct all reinforced concrete work, structural beams, columns and other structural members. The details are to be submitted with the construction certificate to the Certifier for approval prior to construction of the specified works.

A copy will be forwarded to Council where Council is not the Certifying Authority.

31. Access for Persons with Disabilities - Access for persons with disabilities must be provided to and within the site, including to all foyer areas, basement carpark, required communal areas including the sanitary and kitchen facilities and allocated balconies in accordance with the requirements of the Premises Standards, the Building Code of Australia and AS 1428.1. Details must be submitted with the Construction Certificate Application.

In regards to the above, pedestrian access throughout basement levels shall be highlighted/line marked and sign posted to safeguard egress.

In the event that full compliance cannot be achieved the services of an accredited access consultant is to be obtained to determine alternative methods of compliance, such a report must be submitted to and endorsed by the Principal Certifying Authority prior to issue of the Construction Certificate.

32. Commonwealth Disability (Access to Premises) Standard - The Commonwealth Disability (Access to Premises - Buildings) Standards 2010 (the Premises Standards) applies to all applications (including a Construction Certificate). This requires any new building, part of a building and the affected part of the existing building to comply with the Premises Standards, the Building Code of Australia and AS 1428.

33. Access - The recommendations of the Access Report prepared by Vista Access Architects Reference No. 18216 shall be implemented in the Construction Certificate Plans and Documents.

34. BCA Assessment - The recommendations in the Assessment of BCA Compliance Capability prepared by Certified Building Specialists and dated 26 November 2018 shall be incorporated within the Construction Certificate Plans and relevant documents.

35. Contamination Report - The recommendations of the Preliminary Site Investigation prepared by EI Australia dated 15 October 2018 and the Detailed Site Investigation Report dated 27 November 2019 prepared by eiaustralia shall be included within the Construction Certificate Plans and relevant documents.

36. Traffic – The recommendations included within the Traffic and Parking Assessment Report prepared by Terraffic and dated 12 November 2018 shall be incorporated into the Construction Certificate Plans and related documents.

37. Geotechnical – The recommendations included within the Geotechnical report prepared by EI Australia and dated 22 October 2018 shall be incorporated into the Construction Certificate Plans and Documents.

38. Waste Management - The recommendations included within the Waste Minimisation and Management Plan prepared by PBD Architects and dated 12 November 2018 shall be included as part of the Construction Certificate Plans and associated documents.

39. Acoustic Requirements – The recommendations included in the Acoustic Report prepared by Acoustic, Vibration and Noise P/L shall be included as part of the Construction Certificate Plans and associated documents. The Construction Certificate plans shall demonstrate compliance with the Acoustic Assessment submitted to Council, titled “Acoustic Report – Traffic & Environmental Noise – for proposed development at No. 5 – 11A Wyuna Street, Beverley Park. Reference No. 2018-403” prepared by Acoustic, Vibration & Noise Pty Ltd dated 22 October 2018.

This means that a review of glazing design and mechanical plant must be undertaken to ensure that acoustic objectives will be met. Written verification from a suitably qualified acoustic consultant must be submitted to Council validating that the acoustic objectives contained within the aforementioned report will be met, must be submitted to Council for approval. The Construction Certificate will not be issued until Council approves this validation

40. Vibration Damage - To minimise vibration damage and loss of support to the buildings in close proximity to the development any excavation is to be carried out by means of a rock saw and if available, in accordance with the guidelines of the Geotechnical Engineer’s report.

Alternatively where a hydraulic hammer is to be used within 30 metres of any building (other than a path or a fence) a report from a qualified geotechnical engineer detailing the maximum size of hammer to be used is to be obtained and the recommendations in that report implemented during work on the site.

The report must be submitted with the Construction Certificate application.

41. Slip Resistance - All pedestrian surfaces in areas such as foyers, public corridors/hallways, stairs and ramps as well as floor surfaces in the wet rooms in any commercial/retail/residential units will have slip resistance classifications, as determined using test methods in either wet or dry conditions, appropriate to their gradient and exposure to wetting. The classifications of the new pedestrian surface materials, in wet or dry conditions, will comply with AS4586:2013 - Slip Resistance Classifications of New Pedestrian Surface Materials and will be detailed on the plans lodged with the application for the Construction Certificate.

42. Advice from Fire and Rescue (FR) NSW - Prior to the issue of a Construction Certificate the applicant may be required, under Clause 144 of the Environmental Planning & Assessment Regulation, 2000 to seek written comment from FR NSW about the location of hydrant facilities and any Fire Engineered Solution developed to meet the performance requirements under the Category 2 Fire Safety Provisions.

43. Site Management Plan - A Site Management Plan must be submitted with the application for a Construction Certificate, and include the following:

(a) location of protective site fencing;

(b) location of site storage areas/sheds/equipment, not within the curtilage of the heritage item;

(d) provisions for public safety;

(e) dust control measures;

(f) method used to provide site access location and materials used;

(g) details of methods of disposal of any materials off site;

(h) method used to provide protective measures for tree preservation;

(i) provisions for temporary sanitary facilities;

(j) location and size of waste containers/skip bins, not within the curtilage of the heritage item;

(k) details of proposed sediment and erosion control measures;

(l) method used to provide construction noise and vibration management;

(m) traffic management details during construction.

The site management measures are to be implemented prior to the commencement of construction works. The site management measures are to be maintained throughout the works, to maintain reasonable levels of public health, safety and amenity. A copy of the Site Management Plan will be kept on site and is to be made available upon request.

44. Driveway Construction Plan Details - Engineering plans for the driveway shall be submitted with the Construction Certificate application for approval that show:

(a) Longitudinal and cross sections, gradients, access onto the proposed lots, type of construction materials designed in accordance with Council's Subdivision standards and AS/NZS2890.1-2004.

(b) Suitable underground provision for the supply of all relevant services to the proposed lots (proposed position of pipes and conduits).

(c) The full length of the driveway designed with a minimum 150mm thick reinforced concrete and minimum of 2.7m wide pavement/kerb face to kerb face width, and a non-slip surface.

45. Car Wash Bay – Plans and specifications of the car washing system approved by Sydney Water must be submitted with the application for the Construction Certificate. One visitor space shall be designated as a Car wash bay and this space shall be conveniently located in order to serve this purpose.

All car washing bays will be contained within a roofed and bunded car wash bay with pre-treatment approved by Sydney Water. The water from the car wash bay must be graded to a drainage point and connected to sewer.

If alternative water management and disposal options are proposed (i.e. where water is recycled, minimised or reused on the site), detailed plans and specifications of the water recycling system must be submitted with the application for the Construction Certificate for approval by Council’s Environmental Health Officers.

46. SEPP 65 Design Verification Statement - A design verification statement, prepared by a qualified designer, must be submitted to the Certifier verifying that the plans and specifications achieve or improve the design quality of the development for which development consent was granted, having regard to the design quality principles set out under Schedule 1 of State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development.

47. Council Property Shoring - Prior to the issue of the Construction Certificate, plans and specifications prepared by a professional engineer specialising in practising structural engineering will detail how Council’s property will be supported at all times.

Where any shoring is to be supporting, or located on Council’s property, certified structural engineering drawings detailing; the extent of the encroachment, the type of shoring and the method of removal, will be included on the plans. Where the shoring cannot be removed, the plans will detail that the shoring will be cut to 150mm below footpath level and the gap between the shoring and any building will be filled with a 5MPa lean concrete mix.

48. BASIX Commitments - All energy efficiency measures as detailed in the BASIX Certificate No.974609M and dated 23 November 2018 must be implemented on the plans lodged with the application for the Construction Certificate.

49. Acoustic requirements for timber flooring - If timber flooring is installed within the development, then appropriate insulation between floors shall be implemented to exceed the minimum sound attenuation.

50. Acoustic attenuation for apartments adjoining lift core – Where bedrooms within apartments that adjoin the internal lift core appropriate noise attenuation measures are to be applied to prevent transmission of noise in accordance with the Building Code of Australia (BCA)

51. Landscape Plans - All landscape works shall be carried out in accordance with the approved landscape plans and specifications, drawn by PBD Architects/ A Total Concept Landscape Architects, reference numbers – L00 - L05. The landscaping shall be maintained in accordance with the approved plans in perpetuity, subject to the following -

a) Six (6) street trees provided by the applicant shall be minimum 45 litre pot/ bag size and denoted upon the landscape plan

b) The proposed plant species, pot/ bag size and quantities of plants shall be in accordance with the proposed plant schedule upon the landscape plan. If plant species, pot/ bag size and quantities cannot be sourced, Council shall be contacted for alternatives.

c) All trees proposed upon the approved landscape plan shall comply with NATSPEC Specifying Trees: a guide to assessment of tree quality (2003), and be planted and maintained in accordance with Councils standard specification, and AS 2303 – 2015/ 18

d) If the trees and plants are found to be faulty, damaged, dying or dead within twelve (12) months of planting then they must be replaced with the same species. If the trees are found dead before they reach a height where they are protected by Councils Tree Management Controls, they must be replaced with the same species and pot/bag size.

e) The Outline Landscape Specification shall be completed and form part of landscape works for their entirety.

52. Compliance with submitted Arborist Report - The recommendations outlined in the Arborist’s Report titled Arboricultural Impact Appraisal and method statement, prepared by Naturally Trees, dated 5 October 2018, must be implemented throughout the relevant stages of construction. Details of tree protection measures to be implemented must be detailed and lodged with the Construction Certificate application for approval and shall be in accordance with Section 4 - Australian Standard AS 4970-2009: Protection of trees on development sites.

53. Tree Protection and Retention - The following trees shall be retained and protected:

Tree Species	Location of Tree / Tree No.	Tree Protection Zone (metres) fencing distance from trunk
T18 - Syzigium Spp	Within property at rear of development, close to fence, north	3.0 metres radially

Details of the trees to be retained must be included on the Construction Certificate plans.

General Tree Protection Measures

(a) All trees to be retained shall be protected before and maintained during demolition, excavation and construction of the site.

(b) The tree protection measures must be in undertaken in accordance AS4970 -2009 Protection of trees on development sites.

(c) Details of the tree protection measures to be implemented must be provided with the application for a Construction Certificate by a suitably qualified Arborist who holds an AQF Level 5 or above in Arboriculture and who is a current financial member of Arboriculture Australia – AA and or Institute of Australian Consulting Arboriculturists – IACA.

(d) The Project Arborist must be present on-site during the stages of excavation, demolition and construction when works are being undertaken that could impact on the tree canopy or root zone within the tree protection zone of each tree.

(e) Unless otherwise specified in AS 4970-2009 Protection of trees on development sites, a protective fence consisting of 2.4 x 1.8 metres high, fully supported chainmesh fence shall be used. The distance of the fence from the base of each tree is to be in accordance with the TPZ listed in the table above. A layer of organic mulch 100 millimetres thick shall be placed over the protected area and no soil or fill should be placed within the protection area.

(f) The Tree Protection Zone of each tree, to be protected, shall be watered thoroughly and regularly to minimise the effects of construction works.

(g) No building products/ materials or services shall be installed within the TPZ of the tree/s unless approved by Council. This fence shall be kept in place during demolition, construction and also have a sign displaying ‘Tree Protection Zone – DO NOT ENTER’ attached to the fence and must also include the name and contact details of the Project Arborist.

Excavation works near tree to be retained

(h) Excavations around the trees to be retained on site or the adjoining properties shall be supervised by the Project Arborist to ensure that the root system will not adversely be affected.

(i) Where the Tree Protection Zone (TPZ) of trees on site or adjoining sites become compromised by any excavation works, the Project arborist shall be consulted to establish the position of any major roots and determine the necessary measures to protect these roots. The recommendations of the Arborist shall be submitted to Council prior to any further demolition or construction works taking place.

(j) Tree Protection Zone around the trees to be retained are not to have soil level changes, building product / materials stored or services installed in this area. Any structures proposed to be built in this area of the trees are to utilise pier and beam or cantilevered slab construction.

Details satisfying this condition shall be shown on the Construction Certificate plans.

54. Tree Removal & Replacement - Permission is granted for the removal of the following trees:

Tree Species	Number of trees	Location
T1 – Mangifera indica	X1	Upon the side fence of No 5
T2 – Ficus carica	X1	Upon the side fence of No 5
T3, 4, 5, 6 – Phoenix roebelenii	X4	Front of property No 5
T7 – Plumeria indica	X1	Within front yard of No 7
T8 – Persea americana	X1	Within side fence of No 9
T9, 10, 11, 12 – Mangifera indica	X4	Within side fence of No 9
T13, 14 – Yucca Spp	X2	Front yard of No 11
T15, 16, 17 – Cupressus Spp	X3	Backyards of No 9 and 11

General Tree Removal Requirements

(a) All tree removal shall be carried out by a minimum certificate Level 3, Licenced and insured Tree Surgeon/Arborist to ensure that removal is undertaken in a safe manner and complies with the AS 4373-2007 - Pruning of Amenity Trees and Tree Works Industry Code of Practice (Work Cover NSW 1.8.98).

(b) No trees are to be removed on the site or neighbouring properties without the prior written approval of Council.

55. Street Tree Removal/Replacement by Council – The following trees/plants will be required to be installed;

(a) Six (6) street trees of species Harpulia pendula and pot sizes minimum 45 litre must be provided in the road reserve fronting the site.

(b) Council shall be appointed to plant all trees on public land. All costs associated with the removal of the tree/s and the planting of replacement trees shall be met by the applicant. Fees and charges outlined in the table below are subject to change and are set out in the current version of Council's ‘Schedule of Fees and Charges’, applicable at the time of payment.

A copy of the Hurstville City Council’s Tree Removal and Pruning Guidelines and Kogarah City Council, Street Tree Management Strategy and Masterplan, can be downloaded from Council’s website www.georgesriver.nsw.gov.au.

56. Pre-Construction Dilapidation Report – Private Land - A professional engineer specialising in structural or geotechnical engineering shall prepare a Pre-Construction Dilapidation Report detailing the current structural condition of adjoining premises including but not limited to:

(a) All neighbouring buildings likely to be affected by the excavation as determined by the consulting engineer.

The report shall be prepared at the expense of the applicant and submitted to the satisfaction of the Certifying Authority prior to the issue of the Construction Certificate.

A copy of the pre-construction dilapidation report is to be provided to the adjoining properties (subject of the dilapidation report), a minimum of 5 working days prior to the commencement of work. Evidence confirming that a copy of the pre-construction dilapidation report was delivered to the adjoining properties must be provided to the PCA.

Should the owners of properties (or their agents) refuse access to carry out inspections, after being given reasonable written notice, this shall be reported to Council to obtain Council’s agreement to complete the report without access. Reasonable notice is a request for access in no sooner than 14 days between 8.00am-6.00pm.

57. Stormwater System – The submitted stormwater plans (Stormwater Plans dwg No.1961 S1/5, S3/5 and S5/5 Issue H dated 11/7/2018 prepared by John Romanous and Associates Pty Ltd) have been assessed as a concept plan only. Final detailed plans of the drainage system, prepared by a professional engineer specialising in hydraulic engineering, shall be submitted for approval with the Construction Certificate.

(a) All stormwater shall drain by gravity to Council's kerb and gutter directly in front of the development site in accordance with the Australian/New Zealand Standard AS/NZS 3500.3: 2015 as shown on the approved drainage plan. The control pit in the OSD tank shall be contained a silt trap and the outlet pipe to the kerb shall be RHS galvanised as indicated on the plan.

(b) The PCA shall ensure that the approved drainage design levels are surveyed during construction by a registered surveyor.

(c) The PCA shall ensure that a drainage engineer shall supervise the construction of the OSD stormwater system on site and certify his supervision in writing and state his satisfaction of the constructed site stormwater system is built as intended in this consent.

(d) Stormwater drainage plans including pipe sizes, type, grade, length, invert levels, dimensions and types of drainage pits prepared by a professional engineer who specialises in Hydraulic Engineering in accordance with the Australian Institute of Engineers Australian Rainfall and Runoff (1987) and Council's Stormwater Drainage Guidelines, shall accompany the application for the Construction Certificate.

(e) The design and structural adequacy of the OSD tank system shall be certified by a practicing drainage engineer to the satisfaction of the PCA.

Design details and certifications shall be submitted for approval with the Construction Certificate application.

58. Stormwater Systems with a Basement - The underground basement car park must pump to and all other stormwater must drain by gravity to the drainage system within the site via a silt trap pit.

The design of the proposed drainage system must be prepared by a professional engineer who specialises in hydraulic engineering and be submitted for approval with the Construction Certificate application.

59. Protection of basement from inundation of stormwater waters – The following measures will need to be implemented;

(a) The protection of the underground basement shall be protected from possible inundation by surface waters from the street.

Evidence from a professional engineer who specialises in hydraulic engineering that this design requirement has been adhered to shall be submitted with the Construction Certificate application.

60. On Site Detention – The submitted stormwater plan has been assessed as a concept plan only. Final detailed plans of the drainage system, prepared by a professional engineer specialising in hydraulic engineering, shall be submitted for approval with the Construction Certificate.

An on-site detention (OSD) facility designed by a professional engineer who specialises in Hydraulic Engineering must be designed, approved and installed. The design must include the computations of the inlet and outlet hydrographs and stage/storage relationships of the proposed OSD using the following design parameters:

(a) peak flow rates from the site are to be restricted to a permissible site discharge (PSD) equivalent to the discharge when assuming the site contained a single dwelling, garage, lawn and garden.

(b) at Annual Recurrence Intervals of 2 years and 100 years.

(d) The design and structural adequacy of the OSD tank system shall be certified by a practicing drainage engineer to the satisfaction of the PCA.

Refer to Flow Controls in Council's Draft/Adopted Stormwater Drainage Policy.

The OSD facility shall be designed to meet all legislated safety requirements and childproof safety fencing around the facility must be provided where the OSD facility is open or above ground when the design peak storage depth is greater than 300mm. A durable metal plate or similar sign is to be placed at the OSD facility and must bear the words:

"BEWARE: This is an on-site detention basin/tank for rainwater which could overflow during heavy storms."

Full details shall accompany the application for the Construction Certificate.

61. Pump-Out System Design for Stormwater Disposal – The design of the pump-out system for storm water disposal will be permitted for drainage of basement areas only, and must be designed in accordance with the following criteria:

(a) The pump stormwater pit shown in the Civil Engineering Plan prepared by WSP is acceptable to Council. The pump system shall consist of two pumps, connected in parallel, with each pump being capable of emptying the holding tank at the rate equal to the rate of inflow for the one-hour duration storm. The holding tank shall be capable of holding one hour’s runoff from a one-hour duration storm of the 1 in 100 year storm.

(b) The pump system shall be regularly maintained and serviced, every six (6) months; and

(c) The drainage disposal shall be discharged to the OSD system. Details and certification of compliance from a professional engineer specialising in civil engineering shall be provided for approval with the Construction Certificate application.

PRIOR TO COMMENCEMENT OF WORKS

62. Erosion & Sedimentation Control - Erosion and sediment controls must be in place prior to commencement of any work on the site. These measures include:

(a) Compliance with the approved Erosion & Sediment Control Plan

(b) Removal or disturbance of vegetation and top soil is confined to within 3m of the approved building area (no trees to be removed without approval)

(d) Silt fences, stabilised entry/exit points or other devices are installed to prevent sediment from entering drainage systems or waterways

(e) All erosion and sediment controls are fully maintained for the duration of excavation and construction works

(f) Controls are put into place to prevent tracking of sediment by vehicles onto adjoining roadway

(g) All disturbed areas are rendered erosion-resistant by turfing, mulching, paving or similar

(h) Compliance with Managing Urban Stormwater - Soils and Construction (Blue Book) produced by Landcom 2004.

These measures are to be implemented prior to the commencement of work (including excavation) and will remain until works are completed and all exposed surfaces are landscaped/sealed.

63. Demolition & Asbestos - The demolition work shall comply with the provisions of Australian Standard AS2601:2001 – Demolition of Structures, NSW Work Health & Safety Act 2011 and the NSW Work Health & Safety Regulation 2011. The work plans required by AS2601:2001 shall be accompanied by a written statement by a suitably qualified person that the proposals contained in the work plan comply with the safety requirements of the Standard. The work plans and the safety statement shall be submitted to the PCA prior to the commencement of works.

For demolition work which involves the removal of asbestos, the asbestos removal work must be carried out by a licensed asbestos removalist who is licensed to carry out the work in accordance with the NSW Work Health & Safety Act 2011 and the NSW Work Health & Safety Regulation 2011 unless specified in the Act and/or Regulation that a license is not required.

All demolition work including the removal of asbestos, shall be undertaken in accordance with the Demolition Code of Practice (NSW Work Cover July 2015).

Note: Copies of the Act, Regulation and Code of Practice can be downloaded free of charge from the SafeWork NSW website: www.SafeWork.nsw.gov.au.

64. Demolition Notification Requirements - The following notification requirements apply to this consent:

(a) The developer /builder must notify adjoining residents five (5) working days prior to demolition. Such notification is to be a clearly written note giving the date demolition will commence, contact details of the developer/builder, licensed asbestos demolisher and the appropriate regulatory authority. Notification is to be placed in the letterbox of every premises (including every residential flat or unit, if any) either side and immediately at the rear of the demolition site.

(b) Five (5) working days prior to demolition, the developer/builder is to provide written notification to Council advising of the demolition date, details of the SafeWork licensed asbestos demolisher and the list of residents advised of the demolition.

(c) On demolition sites where buildings to be demolished contain asbestos, a standard commercially manufactured sign containing the words “DANGER ASBESTOS REMOVAL IN PROGRESS” measuring not less than 400mm x 300mm is to be erected in a prominent visible position (from street frontage) on the site. The sign is to be erected prior to demolition work commencing and is to remain in place until such time as all asbestos material has been removed from the site to an approved waste facility.

65. Site Management - The site management measures are to be implemented prior to the commencement of construction works. The site management measures are to be maintained throughout the works, to maintain reasonable levels of public health, safety and amenity. A copy of the Site Management Plan will be kept on site and is to be made available upon request.

66. Site Safety Fencing - Site fencing will be erected in accordance with SafeWork Guidelines, to exclude public access to the site throughout the construction work, except in the case of alterations to an occupied dwelling. The fencing will be erected before the commencement of any work and maintained throughout all construction work.

A high risk work license may be required from SafeWork NSW (see www.SafeWork.nsw.gov.au).

67. Dilapidation Report on Public Land – Prior to the commencement of works (including excavation), a dilapidation report must be prepared for the Council infrastructure adjoining the development site.

The report must include the following:

(a) Photographs showing the existing condition of the road pavement fronting the site,

(b) Photographs showing the existing condition of the kerb and gutter fronting the site,

(d) Photographs showing the existing condition of any retaining walls within the footway or road, and

(e) The full name and signature of the structural engineer.

(f) The Dilapidation Report must be prepared by a qualified structural engineer. The report must be provided to the PCA and a copy provided to the Council.

The Dilapidation Report must be prepared by a professional engineer. The report must be provided to the PCA and a copy provided to the Council.

The report is to be supplied in electronic format in Word or PDF. Photographs are to be in colour, digital and date stamped.

Note: Council will use this report to determine whether to refund the damage deposit after the completion of works.

68. Registered Surveyor's Report - During Development Work - A report will be submitted to the Certifier at each of the following applicable stages of construction:

(a) Set out before commencing excavation.

(b) Floor slabs or foundation wall, before formwork or commencing brickwork.

(c) Completion of Foundation Walls - Before any construction of flooring, detailing the location of the structure relative to adjacent boundaries and floor levels relative to the datum shown on the approved plans.

(d) Completion of Floor Slab Formwork - Before pouring of concrete/walls construction, detailing the location of the structure relative to adjacent boundaries and floor levels relative to the datum shown on the approved plans. In multi-storey buildings a further survey will be provided at each subsequent storey.

(e) Completion of any Roof Framing - Before roof covered detailing eaves/gutter setback from boundaries.

(f) Completion of all Work - Detailing the location of the structure (including eaves/gutters) relative to adjacent boundaries and its height relative to the datum shown on the approved plans. A final Check Survey will indicate the reduced level of the main ridge.

Work will not proceed beyond each stage until the Principal Certifier is satisfied that the height and location of the building is proceeding in accordance with the approved plans.

69. Utility Arrangements - Arrangements are to be made with utility authorities in respect to the services supplied by those authorities to the development. The cost associated with the provision or adjustment of services within the road and footway areas is to be at the applicant’s expense.

70. Structural Engineer’s Details - Supporting Council road/footway - Prior to the commencement of work in connection with the excavation of the site associated with the basement carpark, structural engineer’s details relating to the method of supporting Council’s roadways/footways and the Heritage Item on site will be submitted to the satisfaction of Council.

71. Notification Requirements - The following notification requirements apply to this consent:

(a) The developer/builder will notify adjoining residents five (5) working days prior to excavation. Such notification is to be a clearly written note giving the date works will commence, contact details of the developer/builder and the appropriate regulatory authority. Notification is to be placed in the letterbox of every premises (including every residential flat or unit, if any) either side and immediately at the rear of the site.

(b) Five (5) working days prior to excavation, the developer/builder is to provide written notification to Council advising of the commencement date, and details of the list of residents advised of the works.

72. Notice of Commencement - The beneficiary of the development consent must give at least two (2) days’ notice to the Council and the Principal Certifier of their intention to commence the erection of a building.

73. Notification of Critical Stage Inspections - No later than two (2) days before the building work commences, the Principal Certifier must notify:

(a) the consent authority and the Council (if not the consent authority) of his or her appointment; and

(b) the beneficiary of the development consent of the critical stage inspections and other inspections that are to be carried out with respect to the building work.

74. Structural Engineer’s Details - Supporting excavations and adjoining land - Prior to the commencement of work in connection with the excavation of the site associated with the basement car park, structural engineer’s details relating to the method of supporting the excavation will be submitted.

DURING CONSTRUCTION

75. Hazardous or Intractable Waste – Removal and Disposal - Hazardous or intractable waste arising from the excavation or construction process shall be removed and disposed of in accordance with the requirements of SafeWork NSW and the NSW Environment Protection Authority and with the provision of:

· Work Health and Safety Act 2011 (NSW) (as amended);

· Work Health and Safety Regulation 2011 (as amended);

· Protection Of the Environment Operations Act 1997 (NSW) (as amended); and

· Protection of the Environment Operations (Waste) Regulation 2014 (as amended)

76. Site Contamination – During Construction - Any new information that comes to light during construction which has the potential to alter previous conclusions about site contamination and remediation, requires the applicant to notify Council immediately (within 24 hours of discovery) along with the Accredited Certifier and all works on site must cease.

An amended detailed site investigation (DSI) report shall be carried out by a certified contaminated land consultant and be submitted to Council for review

Should the amended DSI report find that the contamination makes the land currently unsuitable for the proposed development and remediation is required, a Remedial Action Plan (RAP) must be prepared by a certified contaminated land consultant and submitted to Council as per required under State Environmental Planning Policy No. 55 – Remediation of Land.

Works on site must not recommence until such time Council has reviewed the amended DSI and RAP (if required) and has accepted the recommendations of these reports in writing to the applicant

Notice of remediation work – written notice must be submitted to Council 30 days prior to the commencement of remediation works, in accordance with clause 16 of the State Environmental Planning Policy No. 55 – Remediation of land.

A validation report prepared by the certified contaminated land consultant verifying that the land is suitable to be used for this development consent must be submitted to Council prior to an Occupation Certificate being issued.

Should the recommendation in the amended DSI report require monitoring of the site, then an Environmental Monitoring Program (EMP) must be submitted to Council prior to an Occupation Certificate being issued.

Council may require a site audit of the DSI, RAP, EMP and or Validation report. A site audit statement and a site audit summary report from an accredited site auditor under the Contaminated Land Management Act 1997, verifying the information contained in the reports must be submitted to Council.

77. Critical Stage Inspections - The last critical stage inspection must be undertaken by the Principal Certifier. The critical stage inspections required to be carried out vary according to Building Class under the Building Code of Australia and are listed in Clause 162A of the Environmental Planning and Assessment Regulation 2000.

78. Site sign - A clearly legible Site Management Sign is to be erected and maintained throughout the course of the works. The sign is to be centrally located on the main street frontage of the site and is to clearly state in legible lettering the following:

a) The builder's name, builder's telephone contact number both during work hours and after hours.

b) That no works are to be carried out in Council's Road Reserve without prior application and approval of a Road Opening Permit from Council.

c) That a Road Opening Permit issued by Council must be obtained for any road openings or excavation within Council's Road Reserve associated with development of the site, including stormwater drainage, water, sewer, electricity, gas and communication connections. During the course of the road opening works the Road Opening Permit must be visibly displayed at the site.

d) That no skip bins or materials are to be stored on Council's Road Reserve.

e) That the contact number for Council for permits is 9970 1111.

79. Soil & Erosion Control Measures - Prior to the commencement of works (including excavation), a durable site sign, issued by Council in conjunction with this consent, will be erected in a prominent location on site. The site sign warns of the penalties which apply to pollution, storing materials on road or footpath and breaches of the conditions relating to erosion and sediment controls. The sign will remain in a prominent location on site up until the completion of all site and building works.

80. Cost of work to be borne by the applicant – The applicant shall bear the cost of all works associated with the construction of the development that occurs on Council property. Care must be taken to protect Council's roads, including the made footway, kerbs, etc., and, where plant and vehicles enter the site, the footway shall be protected against damage by deep-sectioned timber members laid crosswise, held together by hoop iron straps and chamfered at their ends.

This construction shall be maintained in a state of good repair and condition throughout the course of construction.

81. Obstruction of Road or Footpath – The use of the road or footpath for the storage of any building materials, waste materials, temporary toilets, waste or skip bins, or any other matter is not permitted unless separately approved by Council under Section 138 of the Roads Act 1993 and/or under Section 68 of the Local Government Act 1993. Penalty infringement Notices may be issued for any offences and severe penalties apply.

82. Hours of Construction and Building Work - Any work activity or activity associated with the development consent that requires the use of any tools (including hand tools) or any power operated plant and machinery must not be performed, or permitted to be performed, except between the hours of 7.00am to 5.00pm, Monday to Saturday inclusive. No work or ancillary activity is permitted on Sundays, or Public Holidays.

83. Hazardous or Intractable Waste – Removal and Disposal – Hazardous or intractable waste arising from the excavation or construction process must be removed and disposed of in accordance with the requirements of SafeWork NSW and the NSW Environment Protection Authority and all applicable legislation.

84. Structural Certificate During Construction – The proposed building must be constructed in accordance with details designed and certified by the practising qualified structural engineer and endorsed by the Geotechnical Engineer. All structural works associated with the foundations, piers, footings and slabs for the proposed building must be inspected and structurally certified for compliance by an independent practising geotechnical and structural engineer. In addition, a Compliance or Structural Certificate, to the effect that the building works have been carried in accordance with the structural design; will be submitted to the Principal Certifying Authority at each stage of Construction.

85. Stormwater to Kerb - Any stormwater connections to the kerb and gutter are to be in accordance with Council's 'Specification for Construction by Private Contractors'.

All roof water and surface water from paved or concreted areas are to be disposed of in accordance with the Stormwater Plan by means of a sealed pipeline constructed in accordance with AS/NZS 3500.3:2015. The line will pass through a silt arrestor pit.

86. Redundant Driveway - All existing vehicular crossings adjacent to the subject premises that have become redundant will be removed and the footway and kerb and gutter reinstated at the developer/applicant’s expense.

87. Damage within Road Reserve & Council Assets - The owner will bear the cost of restoring any footpath, roadway and any other Council assets damaged due to works at, near or associated with the site. This may include works by Public Utility Authorities in the course of providing services to the site.

88. Public Utility & Telecommunication Assets - The owner will bear the cost of any relocation or modification required to any Public Utility Authority assets including telecommunication lines & cables and restoring any footpath, roadway and any other Council assets damaged due to works at, near or associated with the site.

89. Works Zone - The installation of a "Works Zone" for the site will require the approval from the Traffic Advisory Committee and/or RMS. As a result, the applicant will provide a formal request to Council's Traffic Section with the duration and exact location of the required "Works Zone" at least 6 weeks prior to its required installation date. All costs associated with the installation of a “Works Zone” will be at the applicant’s expense.

90. Waste Management Facility - All materials removed from the site as a result of site clearing, site preparation and, or excavation will be disposed of at a suitable Waste Management Facility. No vegetation, article, building material, waste or the like will be ignited or burnt.

Copies of all receipts for the disposal, or processing of all such materials will be submitted to the Principal Certifier and Council, where Council is not the Principal Certifier.

91. Site Safety Fencing - Site fencing will be erected in accordance with SafeWork Guidelines, to exclude public access to the site throughout the excavation and construction work, except in the case of alterations to an occupied dwelling. The fencing will be erected before the commencement of any work and maintained throughout any building work.

PRIOR TO ISSUE OF THE OCCUPATION CERTIFICATE

92. Section 73 Compliance Certificate – A Section 73 Compliance Certificate under the Sydney Water Act 1994 must be submitted to the Certifier prior to the issue of the Occupation Certificate.

93. Completion of Landscape Works - All landscape works must be completed before the issue of the Final Occupation Certificate in accordance with approved landscape plans and specifications, drawn by PBD Architects/ A Total Concept Landscape Architects, reference numbers – L00 - L05. The landscaping shall be maintained in accordance with the approved plans in perpetuity:

(a) Six (6) street trees provided by the applicant shall be minimum 45 litre pot/ bag size and denoted upon the landscape plan

(b) The proposed plant species, pot/ bag size and quantities of plants shall be in accordance with the proposed plant schedule upon the landscape plan. If plant species, pot/ bag size and quantities cannot be sourced, Council shall be contacted for alternatives.

(c) All trees proposed upon the approved landscape plan shall comply with NATSPEC Specifying Trees: a guide to assessment of tree quality (2003), and be planted and maintained in accordance with Councils standard specification, and AS 2303 – 2015/ 18

(d) If the trees and plants are found to be faulty, damaged, dying or dead within twelve (12) months of planting then they must be replaced with the same species. If the trees are found dead before they reach a height where they are protected by Councils Tree Management Controls, they must be replaced with the same species and pot/bag size.

(e) The Outline Landscape Specification shall be completed and form part of landscape works for their entirety.

94. Consolidation of Site - The site shall be consolidated into one allotment and by a Plan of Consolidation being prepared by a Registered Surveyor. This Plan shall be registered at the NSW Land and Property Information prior to the issue of an occupation certificate.

95. Validation Report - A validation report prepared by the certified contaminated land consultant verifying that the land is suitable to be used for this development consent must be submitted to Council prior to an Occupation Certificate being issued.

96. Restriction on use of land – A Restriction of Use and positive covenant shall be placed on the property to ensure the implementation of the Schedule of Management works as outlined in the Conservation Management Statement is to occur and is to be tied to the land in perpetuity in accordance with the provisions of Section 88E of the Conveyancing Act 1919 over the subject property.

This Restriction shall ensure that the requirements of the Conservation Management Plan are tied to the property in perpetuity. The proposed wording of the restriction will need to be provided to Council’s satisfaction prior to of the issue of any Occupation Certificate. Documentary evidence of the registration of this Restriction on title is to be supplied to the PCA with the application for any Occupation Certificate.

97. BASIX Certificate - All energy efficiency measures as detailed in the approved BASIX Certificate in the plans approved with the Development Consent must be implemented before issue of any Occupation Certificate.

98. BASIX Compliance Certificate - A Compliance Certificate must be provided to the PCA regarding the implementation of all energy efficiency measures as detailed in the approved BASIX Certificate before any Occupation Certificate is issued.

99. Post Construction Dilapidation report (Private Land) - At the completion of the construction works, a suitably qualified person is to be engaged to prepare a post-construction dilapidation report. This report is to ascertain whether the construction works associated with the subject development created any structural damage to the following adjoining premises:

(a) All adjoining properties identified in the dilapidation condition prior to CC.

The report is to be prepared at the expense of the applicant and submitted to the PCA prior to the issue of the Occupation Certificate. In ascertaining whether adverse structural damaged has occurred to the adjoining premises, the PCA, must compare the post-construction dilapidation report with the pre-construction dilapidation report required by conditions in this consent.

Evidence confirming that a copy of the post-construction dilapidation report was delivered to the adjoining properties subject of the dilapidation report must be provided to the PCA prior to the issue of any Occupation Certificate.

100. Occupation Certificate - A person must not commence occupation or use of the whole or any part of a new building unless an Occupation Certificate has been issued in relation to the building. Only the Principal Certifier appointed for the building work can issue the Occupation Certificate.

101. SEPP 65 Design Verification Statement - The Principal Certifier will not issue an Occupation Certificate to authorise a person to commence occupation of the residential flat development unless the he/she has received a design verification from a qualified designer, being a statement in which the qualified designer verifies that the residential flat development achieves the design quality of the development as shown in the plans and specifications in respect of which the construction certificate was issued, having regard to the design quality principles set out in Part 2 of State Environmental Planning Policy No 65 Design Quality of Residential Flat Development.

102. Requirements prior to the issue of the Occupation Certificate - The following will be completed and or submitted to the PCA prior to the issue of the Occupation Certificate:

(a) All the stormwater/drainage works shall be completed in accordance with the approved Construction Certificate plans prior to the issue of the Occupation Certificate.

(b) The internal driveway construction works, together with the provision for all services (conduits and pipes laid) shall be completed in accordance with the approved Construction Certificate plans prior to the issue of the Occupation Certificate.

(d) Replace all redundant vehicle crossing laybacks with kerb and guttering, and replace redundant concrete with turf.

(e) A Section 73 (Sydney Water) Compliance Certificate for the Subdivision shall be issued and submitted to the PCA prior to the issue of the Occupation Certificate.

(f) Work as Executed Plans prepared by a Chartered Professional Engineer or a Registered Surveyor when all the site engineering works are complete shall be submitted to the PCA prior to the issue of the Occupation Certificate.

103. Vehicular Crossing and Frontage Work – Major development – The following road frontage works shall be constructed in accordance with Council's Specification for Vehicular Crossings and Associated Works together with the Vehicular Crossing Approval issued by Council’s Engineering Services Division:

(a) Construct footpath for the full length of the frontage of the site in accordance with Council’s Specifications for footpaths.

(b) Construct the vehicular crossing in accordance with Council’s Specifications for vehicular crossings.

(c) Construct a new 150mm high concrete kerb with 450mm wide gutter for the full frontage(s) of the site in accordance with Council’s Specifications for kerb and guttering.

(d) Any existing vehicular crossing and/or laybacks which are redundant must be removed. The kerb and gutter, any other footpath and turf areas shall be restored at the expense of the applicant and in accordance with Council’s Specification for Vehicular Crossings and Associated Works.

The above works shall be carried out at the expense of the applicant and in accordance with Council’s Specification for Vehicular Crossings and Associated Works.

The driveway and road frontage works are to be completed before the issue of the Occupation Certificate.

104. Restriction to User and Positive Covenant for On-Site Detention Facility – A Restriction on Use of the Land and Positive Covenant shall be created and registered on the title of the property, which places the responsibility for the maintenance of the on-site stormwater management system on the owners of the land. The terms of the instrument are to be in accordance with Council’s standard terms and restrictions which are as follows;

Restrictions on Use of Land

The registered proprietor shall not make or permit or suffer the making of any alterations to any on-site stormwater management system which is, or shall be, constructed on the lot(s) burdened without the prior consent in writing of Georges River Council. The expression “on-site stormwater management system” shall include all ancillary gutters, pipes, drains, walls, kerbs, pits, grates, tanks, chambers, basins and surfaces designed to manage stormwater quantity or quality including the temporary detention or permanent retention of stormwater storages. Any on-site stormwater management system constructed on the lot(s) burdened is hereafter referred to as “the system.

Name of Authority having the power to release, vary or modify the Restriction referred to is Georges River Council.”

Positive Covenants

1. The registered proprietor of the lot(s) hereby burdened will in respect of the system:

(a) keep the system clean and free from silt, rubbish and debris

(b) maintain and repair at the sole expense of the registered proprietors the whole of the system so that if functions in a safe and efficient manner

(c) permit the Council or its authorised agents from time to time and upon giving reasonable notice (but at any time and without notice in the case of an emergency) to enter and inspect the land for the compliance with the requirements of this covenant

(d) comply with the terms of any written notice issued by the Council in respect of the requirements of this covenant within the time stated in the notice.

2. Pursuant to Section 88F(3) of the Conveyancing Act 1919 the Council shall have the following additional powers:

(a) in the event that the registered proprietor fails to comply with the terms of any written notice issued by the Council as set out above the Council or its authorised agents may enter the land with all necessary materials and equipment and carry out any work which the Council in its discretion considers reasonable to comply with the said notice referred to in part 1(d) above

(b) the Council may recover from the registered proprietor in a Court of competent jurisdiction:

(i.) any expense reasonably incurred by it in exercising its powers under subparagraph (i) hereof. Such expense shall include reasonable wages for the Council’s employees engaged in effecting the work referred to in (i) above, supervising and administering the said work together with costs, reasonably estimated by the Council, for the use of materials, machinery, tools and equipment in conjunction with the said work.

(ii.) legal costs on an indemnity basis for issue of the said notices and recovery of the said costs and expenses together with the costs and expenses of registration of a covenant charge pursuant to section 88F of the Act or providing any certificate required pursuant to section 88G of the Act or obtaining any injunction pursuant to section 88H of the Act. Name of Authority having the power to release vary or modify the Positive Covenant referred to is Georges River Council.

105. Maintenance Schedule – On-site Stormwater Management. A Maintenance Schedule for the proposed on-site stormwater management measures is to be prepared and submitted to Council. The Maintenance Schedule will outline the required maintenance works, how and when these will be done and who will be carrying out these maintenance works prior to the issuing of the Occupation Certificate.

106. Completion of Major Works - Prior to the issue of the Occupation Certificate, the following works will be completed at the applicant’s expense to the satisfaction of Council’s Engineering Services section:

(a) Stormwater pipes, pits and connections to public stormwater systems within the road related area;

(b) Driveways and vehicular crossings within the road related area;

(d) New footpaths within the road related area;

(e) Relocation of existing power/light pole where required;

(f) Relocation/provision of street signs where required;

(g) New or replacement street trees where required;

(h) New footway verges, where a grass verge exists, the balance of the area between the footpath and the kerb or site boundary over the full frontage of the proposed development will be turfed. The grass verge will be constructed to contain a uniform minimum 75mm of friable growing medium and have a total cover of turf predominant within the street.

(i) New or reinstated kerb and guttering within the road related area; and

(j) New or reinstated road surface pavement within the road.

Council’s Engineering Services Section will advise in writing that the works have been completed to their satisfaction prior to the issue of the Occupation Certificate. [Note: The damage deposit paid to Council will not be released until the works have been completed to Council’s satisfaction].

107. Stormwater Drainage Works - Works As Executed - Prior to the issue of the Occupation Certificate, storm water drainage works are to be certified by a professional engineer specialising in hydraulic engineering, with Works-As-Executed drawings supplied to Council detailing:

(a) Compliance with conditions of development consent relating to stormwater;

(b) The structural adequacy of the On-Site Detention system (OSD);

(c) That the works have been constructed in accordance with the approved design and will provide the detention storage volume and attenuation in accordance with the submitted calculations;

(d) Pipe invert levels and surface levels to Australian Height Datum;

A Works As Executed plan of Council's Stormwater system extension as constructed including all levels will be submitted and approved by Council.

Council’s Engineering Services section will advise in writing that they are satisfied with the Works-As-Executed prior to the issue of an Occupation Certificate.

108. Fire Safety Certificate before Occupation or Use - In accordance with Clause 153 of the Environmental Planning and Assessment Regulation 2000, on completion of building works and prior to the issue of an Occupation Certificate, the owner will cause the issue of a Final Fire Safety Certificate in accordance with Clause 170 of the aforesaid Regulation. The Fire Safety Certificate will be in the form or to the effect of Clause 174 of the Environmental Planning and Assessment Regulation, 2000. In addition, in relation to each essential fire or other safety measure implemented in the building or on the land on which the building is situated, such a Certificate is to state:

(a) That the measure has been assessed by a person (chosen by the owner of the building) who is properly qualified to do so.

(b) That as at the date of the assessment the measure was found to be capable of functioning at a standard not less than that required by the attached Schedule.

A copy of the certificate is to be given by the applicant to the Commissioner of Fire & Rescue NSW and a further copy is to be displayed in a frame and fixed to a wall inside the building's main entrance.

OPERATIONAL CONDITIONS (ONGOING)

109. Intensity of car park lighting – Prior to occupation, the intensity of lighting at the entrance to the basement carpark is to be designed to allow for progressive adjustment of light.

110. Removal and collection – Bins are to be taken to the kerbside for collection and garbage bins and recycling bins are to be collected on a weekly basis. They are to be collected from the kerbside and removed from the kerbside as soon as possible after collection.

111. Acoustic Compliance – General Operation of Premises - The proposed use of the premises and the operation of all plant and equipment shall not give rise to an ‘offensive noise’ as defined in the Protection of the Environment Operations Act 1997 (as amended) and Regulations.

A suitably qualified person shall certify that the operation of the plant equipment shall not give rise to sound pressure level at any affected premises that exceeds the background LA90, 15 min noise level, measured in the absence of the noise sources under consideration by more than 5dB. The source noise level shall be assessed as an LAeq, 15 min in accordance with the NSW Environment Protection Authority’s “NSW industrial Noise Policy.

Certification must be submitted to the PCA prior to the issue of any Occupation Certificate.

112. Development Engineering - Conditions relating to future Strata Subdivision of Buildings - No approval is expressed or implied for the subdivision of the subject building(s). For any future Strata subdivision, a separate Development Application or Complying Development Certificate shall be approved by Council or an Accredited Certifier.

Prior to the issue of any Strata Certificate of the subject building(s) the following conditions shall be satisfied:

(a) Unit Numbering

Apartment type numbers shall be installed adjacent or to the front door of each unit.

The unit number shall coincide with the strata plan lot numbering.

(b) Car Parking Space Marking and Numbering

Each basement car space shall be line marked with paint and numbered in accordance with the strata plan lot numbering.

“Visitor Parking" signs shall be installed adjacent to any and all visitor car spaces prior to the issue of any Strata Certificate.

Any Visitor car spaces shall be designated on the final strata plan as "Visitor Parking - Common Property".

(d) Allocation of Car Parking Spaces, Storage Areas and Common Property on any Strata Plan.

i. All car parking spaces shall be created as a part lot of the individual strata’s unit lot in any Strata Plan of the subject building.

ii. All storage areas shall be created as a part lot of the individual strata’s unit lot or a separate Utility Lot (if practical) in any Strata Plan of the subject building.

iii. The minimum number of parking spaces required to be allocated as a part lot to each individual strata’s unit lot shall be in accordance with the car parking requirements of Council's Development Control Plan and as required by the relative development consent for the building construction.

iv. No parking spaces shall be created as an individual strata allotment on any Strata Plan of the subject building unless these spaces are surplus to the minimum number of parking spaces required.

If preferred the surplus car spaces shall be permitted to be created as separate Utility Lots, (instead as a part lot of the individual strata’s unit lot), in accordance with section 39 of the Strata schemes (freehold development Act 1973.

The above requirements regarding car parking spaces and storage areas may only be varied with the conditions of a separate Development Application Approval for Strata Subdivision of the Building(s).

(e) On Site Detention Requirements - The location any on-site detention facility shall be shown on the strata plan and suitably denoted.

(f) Creation of Positive Covenant – Detention Basin

A Positive Covenant shall be created over any on-site detention facility by an Instrument pursuant to Section 88B of the Conveyancing Act 1919, with the covenant including the following wording:

"It is the responsibility of the Owner's Corporation to keep the on-site detention facilities, together with any ancillary pumps, pipes, pits etc, clean at all times and maintained in an efficient working condition. The on-site detention facilities shall not be modified in any way without the prior approval of Georges River Council."

Georges River Council is to be nominated as the Authority to release, vary or modify this Covenant.

113. Acoustic Certification - Prior to the issue of any Occupation Certificate, a suitably qualified acoustic consultant will certify that the operation of the premises and plant equipment will not give rise to a sound pressure level at any affected premises that exceeds the relevant acoustic criteria. The development will at all times comply with these noise levels post occupation.

114. BASIX Certificate - All energy efficiency measures as detailed in the approved BASIX Certificate in the plans approved with the Development Consent will be implemented before issue of any Occupation Certificate. A Compliance Certificate will be provided to the Principal Certifier regarding the implementation of all energy efficiency measures as detailed in the approved BASIX Certificate before any Occupation Certificate is issued.

115. Allocation of Car Parking Spaces – A total of 109 car parking spaces, and a minimum of thirty (30) bicycle parking spaces associated with the development is to be allocated as follows, sign posted and/or line marked accordingly:

· Ninety six (96) residential spaces, including eight (8) accessible spaces.

· Thirteen (13) dedicated visitor spaces.

o One (1) of the visitor spaces is to also be a shared as a wash bay.

· Twenty two (22) bicycle spaces for residents.

· Eight (8) bicycle spaces for visitors.

· One (1) loading bay marked and signposted accordingly

· The turning bay shall be signposted and remain free at all times.

116. Electricity Supply - Evidence will be provided demonstrating that the development has been connected to the electricity network.

117. Structural Certificates - The proposed structure will be constructed in accordance with details designed and certified by the practising qualified structural and geotechnical engineer. In addition, Compliance or Structural Certificates, to the effect that the building works have been carried in accordance with the structural design; will be submitted to the PCA prior to the issue of the Occupation Certificate.

118. Stormwater & Ancillary Works - Applications under Section 138 of the Roads Act and/or Section 68 Local Government Act 1993, the applicant must obtain all necessary approvals. An approval for a new or modified vehicular crossing will contain the approved access and/or alignment levels which will be required to construct the crossing and/or footpath. Once approved, all work will be carried out by a private contractor in accordance with Council’s specifications prior to the issue of an Occupation Certificate.

The developer must meet all costs of the extension, relocation or reconstruction of any part of Council’s drainage system (including design drawings and easements if applicable) required to carry out the approved development.

The preparation of all engineering drawings (site layout plans, cross sections, longitudinal sections, elevation views together with a hydraulic grade analysis) and specifications for the new storm water drainage system to be arranged by the applicant. The design plans must be lodged and approved by Council prior to the issue of a Construction Certificate.

NOTE: A minimum of four weeks should be allowed for assessment.

119. Maintenance of Landscaping - All trees and plants forming part of the landscaping must be maintained. Maintenance includes watering, weeding, removal of rubbish from tree bases, fertilizing, pest and disease control, replacement of dead or dying plants and any other operations required to maintain healthy trees, plants and turfed areas.

120. Allocation of street addresses – In order to comply with AS/NZS 4819:2011 Rural and Urban Addressing, the NSW Addressing User Manual (Geographical Names Board of NSW) and Georges River Council’s requirements, the street address for the subject development is allocated as follows:

Primary Address

· 5 Wyuna Street, Beverley Park NSW 2217

· 9 Wyuna Street, Beverley Park NSW 2217

Unit Addresses

· Refer to the attached list of unit addresses for the subject development

Details indicating compliance with this condition must be shown on the plans lodged with any Construction Certificate for approval.

Additional comments

Please note that the allocated unit addresses are different to what was on the plan.

If there are modifications or changes to the number of units during the DA process, please advise the GIS team before the final approval. The list is attached to the consent. Unit Address Table is provided at the end of the set of conditions.

Details indicating compliance with this condition must be shown on the plans lodged with and Construction Certificate for approval.

121. Works as Executed and Certification of Stormwater Works – Prior to the issue of an Occupation Certificate, the PCA must ensure that the stormwater drainage system has been constructed in accordance with the approved design and relevant Australian Standards. A works-as-executed drainage plan and certification must be forwarded to the PCA and Council, from a professional engineer specialising in hydraulic engineering.

This Plan and Certification shall confirm that the design and construction of the stormwater drainage system satisfies the conditions of development consent and the Construction Certificate stormwater design details approved by the PCA.

The works-as-executed drainage plan must be prepared by a professional engineer specialising in hydraulic engineering in conjunction with a Registered Surveyor and must include the following details:

(a) The location of any detention basin/s with finished surface levels;

(b) Volume of storage available in any detention areas;

(d) The orifice size/s

122. Dilapidation Report on Public Land for Major Development Only – Upon completion of works, a follow up dilapidation report must be prepared for the items of Council infrastructure adjoining the development site.

The dilapidation report must be prepared by a professional engineer specialising in structural engineering, and include:

(a) Photographs showing the condition of the road pavement fronting the site

(b) Photographs showing the condition of the kerb and gutter fronting the site

(c) Photographs showing the condition of the footway including footpath pavement fronting the site Photographs showing the condition of retaining walls within the footway or road

(d) Closed circuit television/video inspection (in DVD format) of public stormwater drainage systems fronting, adjoining or within the site, and

(e) The full name and signature of the professional engineer.

The report must be provided to the PCA and a copy provided to the Council. The reports are to be supplied in electronic format in Word or PDF. Photographs are to be in colour, digital and date stamped.

NOTE: Council will use this report to determine whether or not to refund the damage deposit.

Council’s Assets and Infrastructure Division must advise in writing that the works have been completed to their satisfaction prior to the issue of an Occupation Certificate.

123. Stormwater drainage works - Works As Executed – Prior to the issue of the Occupation Certificate, storm water drainage works are to be certified by a professional engineer specialising in hydraulic engineering, with Works-As-Executed drawings supplied to Council detailing:

a. Compliance with conditions of development consent relating to stormwater;

b. The structural adequacy of the On-Site Detention system (OSD);

c. That the works have been constructed in accordance with the approved design and will provide the detention storage volume and attenuation in accordance with the submitted calculations; and

d. Pipe inverts levels and surface levels to Australian Height Datum.

124. Lighting - Any outdoor/security lighting must be located, designed, oriented and shielded in a manner that does not cause disturbance to surrounding premises and/or passing vehicular traffic. This requirement also applies to external lighting within the rooftop communal open space area.

Any lighting on the site shall be designed so as not to cause a nuisance to other residences in the area or to motorists on nearby roads and to ensure no adverse impact on the amenity of the surrounding area by light overspill or glare.

Flashing, moving or intermittent lights or signs are prohibited.

125. Activities and Storage of Goods Outside Buildings - There will be no activities including storing or depositing of any goods or maintenance to any machinery external to the building with the exception of waste receptacles.

126. Boundary fencing - Any new boundary fencing erected along the side and rear boundaries shall not exceed a height of 1.8m unless specified by any other conditions.

127. Disability Discrimination Act – The applicant is responsible to ensure compliance with this and other anti-discrimination legislation.

128. Electrical connection - Any new electrical and telecommunication connections to the site are to be carried out using underground cabling.

129. Finishes - Any materials or surfaces addressing the public domain on the ground and first floor (where accessible by members of the public) shall utilise graffiti-resistant materials.

130. Safety - All communal entrances for the building will be capable of being secured. Entry doors are to be self-closing and signs are to be displayed requesting that building occupants not wedge doors open.

131. Security - If any security screens/grilles are installed, they are to be openable from within the building.

132. Building identification numbering that presents to public areas (ie the adjoining road reserve) are to be at least 7cm high and are to be situated 1-1.5m above ground level on the street frontage. The numbering is to be constructed from durable materials and shall not be obscured by vegetation.

133. Noise Control - The use of the premises will not give rise to the transmission of offensive noise to any place of different occupancy. Offensive noise is defined in the Protection of the Environment Operations Act 1997 (as amended).

134. Amenity of the Neighbourhood - The implementation of this development will not adversely affect the amenity of the neighbourhood or interfere unreasonably with the comfort or repose of a person who is outside the premises by reason of the emission or discharge of noise, fumes, vapour, odour, steam, soot, dust, waste water, waste products, grit, oil or other harmful products.

135. Maintenance of Landscaping - All trees and plants forming part of the landscaping will be maintained. Maintenance includes watering, weeding, removal of rubbish from tree bases, fertilising, pest and disease control, replacement of dead or dying plants and any other operations required to maintain healthy trees, plants and turfed areas.

The maintenance of the landscaping shall be undertaken in perpetuity. Should any plants or trees die, then they shall be replaced with the same species (ie like for like).

136. Annual Fire Safety Statement - The owner of the building premises will ensure the Council is given an annual fire safety statement in relation to each essential fire safety measure implemented in the building. The annual fire safety statement will be given:

(a) Within 12 months after the date on which the fire safety certificate was received.

(b) Subsequent annual fire safety statements are to be given within 12 months after the last such statement was given.

(c) An annual fire safety statement is to be given in or to the effect of Clause 181 of the Environmental Planning and Assessment Regulation 2000.

(d) A copy of the statement is to be given to the Commissioner of Fire & Rescue NSW, and a further copy is to be prominently displayed in the building.

137. Responsibility of Owners Corporation - The Owners Corporation will be responsible for presenting all approved waste and recycling receptacles for collection, and returning all receptacles to the waste collection room, as soon as practicable after they have been serviced.

The Owners Corporation will also be responsible for maintaining all equipment, systems, facilities and storage areas used in conjunction with the provision of waste management services in accordance with all applicable regulatory requirements, relevant health and environmental standards, and to the satisfaction of Council.

138. Management of Waste Facilities – The ongoing management of onsite waste facilities shall be undertaken in accordance with the following requirements:

(a) Occupational Health and Safety issues such as slippery floors in waste rooms and the weight of the waste and recycling receptacles will need to be monitored.

(b) Any cleaners will monitor the bin storage area and all spills will be attended to immediately be cleaners.

139. Waste - The ongoing operation of recycling and waste management services is to be undertaken in accordance with the Waste Management Plan.

140. Air conditioning - Any external plant/air-conditioning system must not exceed a noise level of 5dBA above the background noise level when measured at the boundaries of the property. Any proposed air conditioning systems or mechanical ventilation shall be appropriately screened from view and not located so that it can be seen from the street.

141. Graffiti - Any graffiti on the site is to be removed within forty eight (48) hours.

OPERATIONAL REQUIREMENTS UNDER THE ENVIRONMENTAL PLANNING & ASSESSMENT ACT 1979

142. Requirement for a Construction Certificate - The erection of a building must not commence until a Construction Certificate has been issued.

Should Council be appointed as the Principal Certifying Authority, the Construction Certificate Application must be accompanied by details, with plans prepared and certified by an appropriately qualified person demonstrating compliance with the BCA.

In this regard, detailed construction plans and specifications that demonstrate compliance with the above requirements of the BCA, must be submitted to the Principal Certifying Authority with the Construction Certificate Application.

Should there be any non-compliance, an alternative method of fire protection and structural capacity must be submitted, with all supporting documents prepared by a suitably qualified person.

In the event that full compliance with the BCA cannot be achieved and the services of a fire engineer are obtained to determine an alternative method of compliance with the BCA, such report must be submitted to and endorsed by the Principal Certifying Authority prior to issue of the Construction Certificate.

143. Appointment of a PCA - The erection of a building must not commence until the applicant has:

(a) appointed a PCA for the building work; and

(b) if relevant, advised the PCA that the work will be undertaken as an Owner -Builder.

If the work is not going to be undertaken by an Owner - Builder, the applicant must:

(c) appoint a Principal Contractor to undertake the building work. If residential building work (within the meaning of the Home Building Act 1989) is to be undertaken, the Principal Contractor must be a holder of a contractor licence; and

(d) notify the PCA of the details of any such appointment; and

(e) notify the Principal Contractor of any critical stage inspections or other inspections that are required to be carried out in respect of the building work.

An Information Pack is attached for your convenience should you wish to appoint Georges River Council as the PCA for your development.

144. Notification Requirements of Principal Certifier - No later than two days before the building work commences, the Principal Certifier must notify:

a) the consent authority and the Council (if not the consent authority) of his or her appointment; and

b) the applicant of the critical stage inspections and other inspections that are to be carried out with respect to the building work.

145. Notice of Commencement - The applicant must give at least two days notice to the Council and the Principal Certifier of their intention to commence the erection of a building.

146. Critical Stage Inspections - The last critical stage inspection must be undertaken by the Principal Certifier. The critical stage inspections required to be carried out vary according to Building Class under the Building Code of Australia and are listed in Clause 162A of the Environmental Planning and Assessment Regulation 2000.

147. Occupation Certificate - A person must not commence occupation or use of the whole or any part of a new building unless an Occupation Certificate has been issued in relation to the building or part. Only the Principal Certifier appointed for the building work can issue the Occupation Certificate.

PRESCRIBED CONDITIONS

148. Clause 97A - BASIX Commitments - This Clause requires the fulfilment of all BASIX Commitments as detailed in the BASIX Certificate to which the development relates.

149. Clause 98 – Building Code of Australia & Home Building Act 1989 - Requires all building work to be carried out in accordance with the Building Code of Australia. In the case of residential building work to which the Home Building Act 1989 relates, there is a requirement for a contract of insurance to be in force before any work commences.

150. Clause 98A – Erection of Signs - Requires the erection of signs on site and outlines the details which are to be included on the sign. The sign must be displayed in a prominent position on site and include the name and contact details of the Principal Certifier and the Principal Contractor.

151. Clause 98B – Home Building Act 1989 - If the development involves residential building work under the Home Building Act 1989, no work is permitted to commence unless certain details are provided in writing to Council. The name and licence/permit number of the Principal Contractor or Owner Builder and the name of the Insurer by which work is insured under Part 6 of the Home Building Act 1989.

152. Clause 98E - Protection & support of adjoining premises - If the development involves excavation that extends below the level of the base of the footings of a building on adjoining land, this prescribed condition requires the person who benefits from the development consent to protect and support the adjoining premises and where necessary underpin the adjoining premises to prevent any damage.

153. Clause 98E - Site Excavation - Excavation of the site is to extend only to that area required for building works depicted upon the approved plans. All excess excavated material shall be removed from the site.

All excavations and backfilling associated with the erection of a building must be executed safely and in accordance with appropriate professional standards.

All excavations associated with the erection of a building must be properly guarded and protected to prevent them from being dangerous to life or property.

If the soil conditions require it, retaining walls associated with the erection of a building or other approved methods of preventing movement of the soil shall be provided and adequate provision shall be made for drainage.

END CONDITIONS

NOTES/ADVICES

154. Review of Determination - Section 8.2 of the Environmental Planning and Assessment Act confers on an applicant who is dissatisfied with the determination of the application the right to lodge an application with Council for a review of such determination. Any such review must however be completed within 6 months from its determination. Should a review be contemplated sufficient time should be allowed for Council to undertake public notification and other processes involved in the review of the determination.

Note: Review provisions do not apply to Complying Development, Designated Development, State Significant Development, Integrated Development or any application determined by the Sydney South Planning Panel or the Land & Environment Court.

155. Appeal Rights - Part 8 (Reviews and appeals) of the Environmental Planning and Assessment Act 1979 confers on an applicant who is dissatisfied with the determination of the application a right of appeal to the Land and Environment Court of New South Wales.

156. Lapsing of Consent - This consent will lapse unless the development is physically commenced within 5 years from the Date of Operation of this consent, in accordance with Section 4.53 of the Environmental Planning and Assessment Act 1979 as amended.

157. Access to NSW Legislations (Acts, Regulations and Planning Instruments) - NSW legislation can be accessed free of charge at www.legislation.nsw.gov.au

158. Principal Certifier - Should the Council be appointed as the Principal Certifier in determining the Construction Certificate, the building must comply with all the applicable deemed to satisfy provision of the BCA. However, if an alternative solution is proposed it must comply with the performance requirements of the BCA, in which case, the alternative solution, prepared by an appropriately qualified fire consultant, accredited and having specialist qualifications in fire engineering, must justifying the non-compliances with a detailed report, suitable evidence and expert judgement. Council will also require if deemed necessary, for the alternative solution to undergo an independent peer review by either the CSIRO or other accredited organisation. In these circumstances, the applicant must pay all costs for the independent review.

159. Land Contamination - Note: A Certified Contaminated Land Consultant is a Certified Environmental Practitioner (Site Contamination) (CENVP(SC)) or certified Professional Soil Scientist Contaminated Site Assessment and Management (CPSS CSAM)

Information relating to certified contaminated land consultant or accredited site auditors can be found in EPA webpage: https://www.epa.nsw.gov.au/your-environment/contaminated-land/

160. Energy Efficiency Provisions - Energy Efficiency Provisions - Should Council be appointed as the Principal Certifier, a report prepared and endorsed by an Energy Efficiency Engineer or other suitably qualified person must be submitted, detailing the measures that must be implemented in the building to comply with Section J of the BCA. The proposed measures and feature of the building that facilitate the efficient use of energy must be identified and detailed on the architectural plans. At completion of the building and before the issue of an Occupation Certificate, a certificate certifying that the building has been erected to comply with the energy efficiency provisions must be submitted to the Principal Certifier.

161. Compliance with Access, Mobility and AS4299 - Adaptable Housing - Should the Council be appointment as the PCA, the Construction Certificate Application must be accompanied by detailed working plans and a report or a Certificate of Compliance from an Accredited Access Consultant certifying that the building design and access to the adaptable units complies with Council’s DCP and AS 4299 Adaptable Housing.

162. Noise - Noise related conditions - Council will generally enforce noise related conditions in accordance with the Noise Guide for Local Government (http://www.environment.nsw.gov.au/noise/nglg.htm) and the Industrial Noise Guidelines (http://www.environment.nsw.gov.au/noise/industrial.htm) publish by the Department of Environment and Conservation. Other state government authorities also regulate the Protection of the Environment Operations Act 1997.

Useful links relating to Noise:

(a) Community Justice Centres - free mediation service provided by the NSW Government (www.cjc.nsw.gov.au).

(b) Department of Environment and Conservation NSW, Noise Policy Section web page (www.environment.nsw.gov.au/noise).

(c) New South Wales Government Legislation home page for access to all NSW legislation, including the Protection of the Environment Operations Act 1997 and the Protection of the Environment Noise Control Regulation 2000 (www.legislation.nsw.gov.au).

(d) Australian Acoustical Society - professional society of noise-related professionals (www.acoustics.asn.au/index.php).

(e) Association of Australian Acoustical Consultants - professional society of noise related professionals (www.aaac.org.au).

(f) Department of Gaming and Racing - (www.dgr.nsw.gov.au).

163. Acoustical Engineer Contacts & Reference Material - Further information including lists of Acoustic Engineers can be obtained from:

(a) Australian Acoustical Society - professional society of noise-related professionals (www.acoustics.asn.au)

(b) Association of Australian Acoustical Consultants - professional society of noise related professionals (www.aaac.org.au)

163. Strata Subdivisions

(a) Council will check the consent conditions on the relevant Strata Subdivision consent. Failure to submit the required information will delay endorsement of the plan of subdivision.

(b) Council will undertake the required inspections to satisfy the requirements of the Strata Schemes Development Regulation 2016 to determine the Strata Certificate.

(d) All Strata Plans, Strata Plan Administration Sheets and 88B Instruments shall be submitted to Council enclosed in a protective cardboard tube (to prevent damage during transfer).

164. Sydney Water Section 73 Certificates - The Section 73 Certificate must be a separate certificate that relates specifically to this development consent. For example, if the development consent relates to the subdivision of the land, a Section 73 Certificate for the construction of the building that is subject to a different development consent will not suffice.

165. Electricity Supply - This development may need a connection to the Ausgrid network which may require the network to be extended or its capacity augmented. You are advised to contact Ausgrid on 13 13 65 or www.ausgrid.com.au (Business and Commercial Services) for further details and information on lodging your application to connect to the network.

166. Disability Discrimination Act - This application has been assessed in accordance with the Environmental Planning and Assessment Act 1979. No guarantee is given that the proposal complies with the Disability Discrimination Act 1992. The applicant is responsible to ensure compliance with this and other anti-discrimination legislation. The Disability Discrimination Act 1992 covers disabilities not catered for in the minimum standards called up in the Building Code of Australia which refers to AS1428.1-Design for Access and Mobility.

167. Council as PCA - Total Conformity with BCA - Accompanying Information - Should the Council be appointed as the Principal Certifier, the Construction Certificate Application must be accompanied by the following details, with plans prepared and certified by an appropriately qualified person demonstrating compliance with the BCA:

a) Mechanical ventilation to bathroom, laundry and basement areas not afforded natural ventilation.

b) Fire-fighting services and equipment including hydrant systems and booster assembly location, sprinkler and valve room systems, hose reels, portable fire extinguishers, smoke hazard management systems, sound and warning systems.

c) Emergency lighting and exit signs throughout, including communal open space areas, lobby/foyer and basement areas.

d) Construction of all fire doors including warning and operational signage to required exit and exit door areas.

e) Egress travel distances to exits and the discharge from fire isolated exits including the swing of exit doors.

f) The spandrel protection of openings in external walls

g) The protection of paths of travel from a fire isolated exit when passing within 6m of an opening within the external wall of the building.

h) Fire compartmentation and fire wall separation details including all stairway, lift and service shaft areas.

i) The location and construction of an electricity substation, including the location and smoke separation of electrical distribution boards.

j) Sound transmission and insulation details.

k) Window schedule is to include the protection of openable windows.

In this regard, detailed construction plans and specifications that demonstrate compliance with the above requirements of the BCA must be submitted to the Principal Certifier with the Construction Certificate Application. Should there be any non-compliance, an alternative method of fire protection and structural capacity must be submitted, with all supporting documents prepared by a suitably qualified person.

In the event that full compliance with the BCA cannot be achieved and the services of a fire engineer are obtained to determine an alternative method of compliance with the BCA, such report must be submitted to and endorsed by the Principal Certifier prior to issue of the Construction Certificate.

168. Long Service Levy - The Long Service Corporation administers a scheme which provides a portable long service benefit for eligible workers in the building and construction industry in NSW. All benefits and requirements are determined by the Building and Construction Industry Long Service Payments Act 1986. More information about the scheme and the levy amount you are required to pay to satisfy a condition of your consent can be found at http://www.longservice.nsw.gov.au.

The required Long Service Levy payment can be direct to the Long Service Corporation via their web site https://online.longservice.nsw.gov.au/bci/levy. Payments can only be processed on-line for the full levy owing and where the value of work is between $25,000 and $6,000,000. Payments will be accepted for amounts up to $21,000, using either MasterCard or Visa.

169. Security deposit administration & compliance fee - Under Section 97 (5) of the Local Government Act 1993, a security deposit (or part) if repaid to the person who provided it is to be repaid with any interest accrued on the deposit (or part) as a consequence of its investment.

Council must cover administration and other costs incurred in the investment of these monies. The current charge is $50.00 plus 2% of the bond amount per annum.

The interest rate applied to bonds is set at Council's business banking facility rate as at 1 July each year. Council will accept a bank guarantee in lieu of a deposit.

All interest earned on security deposits will be used to offset the Security Deposit Administration and Compliance fee. Where interest earned on a deposit is not sufficient to meet the fee, it will be accepted in full satisfaction of the fee.

170. Site Safety Fencing - Site fencing must be erected in accordance with SafeWork Guidelines, to exclude public access to the site throughout the demolition and/or construction work, except in the case of alterations to an occupied dwelling. The fencing must be erected before the commencement of any work and maintained throughout any demolition and construction work.

A demolition licence and/or a high risk work license may be required from SafeWork NSW (see www.SafeWork.nsw.gov.au).

171. Stormwater & Ancillary Works - Applications under Section 138 Roads Act and/or Section 68 Local Government Act 1993 - To apply for approval under Section 138 of the Roads Act 1993:

(i) Complete the Driveway Crossing on Council Road Reserve Application Form which can be downloaded from Georges River Council’s Website at www.georgesriver.nsw.gov.au

(ii) In the Application Form, quote the Development Consent No. (eg. DA2018/0580)

(iii) Lodge the application form, together with the associated fees at Council’s Customer Service Centre, during business hours. Refer to Council’s adopted Fees and Charges for the administrative and inspection charges associated with Vehicular Crossing applications.

An approval for a new vehicular crossing will contain the approved access and/or alignment levels which will be required to construct the crossing and/or footpath. Once approved, all work shall be carried out by a private contractor in accordance with Council’s specifications prior to the issue of an Occupation Certificate.

The developer must meet all costs of the extension, relocation or reconstruction of any part of Council’s drainage system (including design drawings and easements) required to carry out the approved development.

Note: A minimum of four weeks should be allowed for assessment.

172. Council as PCA - Compliance with the BCA - Should the Council be appointed as the Principal Certifying Authority in determining the Construction Certificate, the building must comply with all the applicable deemed to satisfy provision of the BCA. However, if an alternative solution is proposed it must comply with the performance requirements of the BCA, in which case, the alternative solution, prepared by an appropriately qualified fire consultant, accredited and having specialist qualifications in fire engineering, must justifying the non-compliances with a detailed report, suitable evidence and expert judgement. Council will also require if deemed necessary, for the alternative solution to undergo an independent peer review by either the CSIRO or other accredited organisation. In these circumstances, the applicant must pay all costs for the independent review.

173. Energy Efficiency Provisions - Should Council be appointed as the Principal Certifying Authority, a report prepared and endorsed by an Energy Efficiency Engineer or other suitably qualified person must be submitted, detailing the measures that must be implemented in the building to comply with Section J of the BCA. The proposed measures and feature of the building that facilitate the efficient use of energy must be identified and detailed on the architectural plans. At completion of the building and before the issue of an Occupation Certificate, a certificate certifying that the building has been erected to comply with the energy efficiency provisions must be submitted to the Principal Certifying Authority.

174. Compliance with Access, Mobility and AS4299 - Adaptable Housing - Should the Council be appointment as the PCA, the Construction Certificate Application must be accompanied by detailed working plans and a report or a Certificate of Compliance from an Accredited Access Consultant certifying that the building design and access to the adaptable units complies with Council’s DCP and AS 4299 Adaptable Housing.

UNIT ADDRESSES

ATTACHMENTS

Attachment ⇩1

Site Plan and Elevations - 5-11A Wyuna St Beverley Park

Georges River Council – Local Planning Panel Thursday, 12 December 2019

Page 182

REPORT TO GEORGES RIVER COUNCIL

LPP MEETING OF Thursday, 12 December 2019

LPP Report No	LPP058-19	Development Application No	DA2018/0277
Site Address & Ward Locality	71-73 Jubilee Avenue Carlton Kogarah Bay Ward
Proposed Development	Demolition of existing buildings and construction of five (5) storey shop top housing development containing twenty three (23) residential apartments, ground level commercial/retail space and basement parking
Owners	N and D Sevastelis
Applicant	AB Works
Planner/Architect	Planner: City Plan Services Architect: AB Works
Date Of Lodgement	28/11/2018
Submissions	Twelve (12)
Cost of Works	$7,372,620.00
Local Planning Panel Criteria	The proposed development is a shop top housing development where the residential component is subject to the provisions of State Environmental Planning Policy No 65.
List of all relevant s.4.15 matters (formerly s79C(1)(a))	State Environmental Planning Policy No.65 – Design Quality of Residential Apartment Development, State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017, State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, Greater Metropolitan Regional Environmental Plan No.2 – Georges River Catchment, State Environmental Planning Policy No.55 – Remediation of Land, State Environmental Planning Policy (Infrastructure) 2007, Draft Environment State Environmental Planning Policy; Draft State Environmental Planning Policy – Remediation of Land, Kogarah Local Environmental Plan 2012, Kogarah Development Control Plan 2013
List all documents submitted with this report for the Panel’s consideration	Architectural Plans Statement of Environmental Effects Traffic and Parking Assessment
Report prepared by	Senior Development Assessment Officer

Recommendation

That the application be refused in accordance with the reasons stated in the report.

Summary of matters for consideration under Section 4.15

Have all recommendations in relation to relevant s4.15 matters been summarised in the Executive Summary of the assessment report?

Yes

Legislative clauses requiring consent authority satisfaction

Have relevant clauses in all applicable environmental planning instruments where the consent authority must be satisfied about a particular matter been listed and relevant recommendations summarised, in the Executive Summary of the assessment report?

Yes

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 - Clause 4.6 statement submitted in respect to non-compliance with Clause 6.9 of KLEP 2012.

Special Infrastructure Contributions

Does the DA require Special Infrastructure Contributions conditions (under s7.24)?

Not Applicable

Conditions

Have draft conditions been provided to the applicant for comment?

No, as the application is being recommended for refusal. The refusal reasons will be available when the report is published.

Site Plan

Site outlined in blue

Executive Summary

Proposal

1. The development application (DA) seeks consent for the demolition of existing structures and the construction of a five (5) storey shop top housing development comprising twenty three (23) units (6 x 1 bedroom, 16 x 2 bedroom and 1 x 3 bedroom units), two (2) levels of basement car parking for a total of forty one (41) car parking spaces, new landscaping and associated site works. A commercial tenancy is to be located on the ground floor with vehicular access and a loading bay proposed from Jubilee Avenue. Communal open space is provided on the rooftop.

Figure 1: Photomontage of the proposed development as viewed from the corner of Princes Highway and Jubilee Avenue (Source PDM Architects)

Figure 2: Photomontage of the proposed development as viewed from the Jubilee Avenue frontage (Source PDM Architects)

Site and Locality

2. The subject site is legally identified as Lots 10 and 11 in DP 625850, with a street address of 71-73 Jubilee Avenue, Kogarah. The site is located on the corner of Princes Highway and Jubilee Avenue Kogarah.

3. The subject site is located within 800m of Carlton Railway Station and approximately 1.5km to the south west of the Kogarah Town Centre.

4. The site is located off Jubilee Avenue with a frontage of approximately 28.43m to Jubilee Avenue, a secondary frontage of 29.055m to Princes Highway with a splay to the corner of Jubilee Avenue and Princes Highway of 4.27m. The site is currently occupied by a single storey building currently used for ute and van hire purposes, a majority of the site is hardstand area. Access to the site is currently via Jubilee Avenue.

5. The site is irregular in shape with a total area of 1074sqm and a slope of approximately 1.2m from the north west to the south east. Vehicular and pedestrian access to the site is via Jubilee Avenue.

6. Across the Princes Highway from the site at 124 Princes Highway is the St Georges Leagues Club and associated child care centre, with the Beverley Park Golf Club further to the south east. To the north west of the subject site across Jubilee Avenue is Jubilee Oval and to the north east is Kogarah Park. To the west of the site in Ecole Street are a number of residential dwelling houses.

7. Council amended its planning controls on 26 May 2017 introduced a new zoning, B6 Enterprise Corridor applying to the land fronting the Princes Highway between Westbourne Street and Jubilee Avenue and half of the block between Francis Street and Westbourne Street. The new zoning provides a height and floor space uplift to allotments within this area to permit a higher density of development.

Zoning and Permissibility

8. The site is zoned ‘B6 Enterprise Corridor’ under the Kogarah Local Environmental Plan 2012 (KLEP). The development is defined as ‘shop top housing’ under KLEP, which is a permissible land use with consent in this zone.

Submissions

9. The development application was publicly exhibited in accordance with the provisions of the Kogarah Development Control Plan 2013. Twelve (12) submissions were received as a result.

10. Minor amendments to the application received during the course of its assessment were not required to be publicly notified in accordance with the development control plan, as they did not result in significant additional environmental impacts.

Reason for referral to the Local Planning Panel

11. This development application is referred to the Local Planning Panel for consideration and determination as it comprises development to which State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development applies as required by the Ministerial Direction of 23 February 2018.

12. A Clause 4.6 variation has been submitted with the application seeking variations to the statutory requirements contained within Clause 6.9 of KLEP 2012 to justify and support the non-compliances. Clause 6.9 – Development in Zone B6 requires that any development provides a maximum gross floor area of 65% for shop top housing and no other use may have a gross floor area less than 500sqm. The proposal provides 87.4% of its gross floor area as shop top housing and only 270sqm of its gross floor area as commercial floor space. The proposal seeks a 22.4% variation to the 65% maximum gross floor area requirements for shop top housing and only provides a total of 270sqm of gross floor area for the commercial floor space, a variation of 46% to the standard.

Planning and Design Issues

13. The proposal is generally an appropriate response to the site when considered against the Design Quality Principles of State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development.

14. The proposal fails to comply with the additional local provision for Development in Zone B6 contained within Clause 6.9 of KLEP 2012. This clause requires that the proposed development must not contain more than 65% of the gross floor area for shop top housing and a land use other than shop top housing have a minimum of 500sqm in gross floor area. The proposal provides 87.4% of its gross floor area as shop top housing and only 270sqm of its gross floor area as commercial floor space. The intent of the new B6 zone was to renew the enterprise corridor and activate the street frontage through commercial space whilst also permitting a percentage of residential floor area above. Failure to meet the minimum commercial floor space is contrary to the intent of the zoning. This will create an undesirable and inappropriate precedent in a recently zoned locality.

15. The B6 Enterprise Corridor zone was introduced to encourage appropriate businesses and offer a range of employment opportunities. The design is inconsistent with the desired future character for development in this street and within the B6 Enterprise Corridor zone, as it has not been designed to cater for the range of employment uses including business, office, retail and light industrial uses, given the small amount of gross floor area assigned to non-residential floor space.

16. Council’s Consultant Arborist has advised that the extent of excavation for the basement area will have an adverse impact upon the health of the trees located on the adjoining property at No 65 Jubilee Avenue, Carlton (Carlton Public School).

17. The proposed balconies which have orientation towards to the school to the north-west have the potential to overlook the school. Concern has been raised with the orientation of the balconies towards Carlton Public School. Reorientating balconies is recommended in any redesign to ensure overlooking is minimised with the use of angled screens where applicable and obscure glazing to also restrict viewing. There will be no visual impact from these openings onto the school.

18. The location of the loading bay at ground level adjacent to the entry ramp is not considered appropriate. The proposed loading bay does not permit a vehicle to enter and leave the site in a forward direction. Vehicular and pedestrian safety is an issue given its location on a busy intersection and proximity to the public school.

Conclusion

19. The application has been assessed having regard to the Matters for Consideration under Section 4.15 of the Environmental Planning and Assessment Act 1979, the provisions of the relevant State Environmental Planning Policies, Local Environmental Plan and Development Control Plans. Given the non-compliance with the minimum commercial area requirements for the B6 zone, pedestrian and vehicular concerns with the loading bay location, overlooking concerns from the balconies facing the adjoining school along with the adverse impact upon the trees within the school site, the proposed development is considered to result in an unacceptable planning outcome.

20. The Clause 4.6 objection in relation to development in the B6 Zone justifying the non-compliances with the maximum gross floor area for shop top housing and minimum gross floor area for other land uses is not considered to be well founded in this instance. The Clause 4.6 statement fails to meet the objectives of the zone in that the development does not provide a minimum amount of floor space to provide for a range of employment uses in accordance with the objectives and intent of the zone.

21. As a result the application is recommended for refusal.

Report in Full

DESCRIPTION OF THE PROPOSAL

22. The original development proposed the demolition of existing structures and the provision of a five (5) storey shop top housing development containing a ground floor commercial unit, twenty three (23) residential units over two (2) levels of basement car parking. Several iterations and amendments of the original plans have occurred during the assessment.

23. The most recent set of amended plans included a series of design changes which in summary include the following (but are not limited to just these);

· Increase in basement excavation to the Jubilee Avenue and Princes Highway allotment boundaries.

· Increase in parking on basement level 2 from 19 to 21 spaces.

· Increase in parking on basement level 1 from 18 to 20 spaces.

· Reconfiguration of ground floor plan including a reduction in commercial space on the ground floor from 404sqm to 270sqm, provision of a service entry to the rear and an increase in the commercial setback to Jubilee Avenue from 3m to 7.3m.

· Inclusion of a loading bay at ground level.

· Reconfiguration of the terrace to Unit A4.05 on the fourth floor.

· The floor space ratio of the development has been reduced from 2.14:1 to 2:1.

24. Further details of the proposed design and layout of the development are as follows:

Basement 2 Plan

- 21 Residential car parking spaces (which includes 3 x accessible spaces with shared zones).

- Eight (8) bicycle parking spaces.

- Three (3) motorcycle spaces.

- Single lift and lobby area.

- Storage areas.

- Two (2) fire access stairs.

Basement 1 Plan

- 20 Car parking spaces comprising the following:

· Four (4) visitor spaces (one space doubles up as a car wash bay and one space includes an accessible space with shared zone).

· Five (5) residential car parking spaces.

· Eleven (11) commercial car parking spaces (which includes an accessible space with shared zone).

- Three (3) bicycle parking spaces.

- Single lift and lobby area.

- Two (2) fire access stairs.

- Five (5) storage spaces for residents.

- Separate residential and commercial garbage rooms.

- Switch room.

Ground Floor Plan

- 270sqm of commercial floor space with accessible toilet.

- Single lift and lobby area.

- Fire access stairs.

- Loading bay and vehicular and pedestrian access off Jubilee Avenue.

- Sprinkler pump room and services.

- Service entry for commercial premises.

- Hydrant booster located on the Jubilee Avenue frontage.

- Deep soil zone located in the north western portion of the subject site.

- Pedestrian pathways.

Level 1 Floor Plan

- 2 x 1 bedroom units (one of which is an adaptable unit).

- 4 x 2 bedroom units.

- Lift lobby and fire stairs.

Level 2 Floor Plan

- 2 x 1 bedroom units (one of which is an adaptable unit).

- 4 x 2 bedroom units.

- Lift lobby and fire stairs.

Level 3 Floor Plan

- 2 x 1 bedroom units (one of which is an adaptable unit).

- 4 x 2 bedroom units.

- Lift lobby and fire stairs.

Level 4 Floor Plan

- 4 x 2 bedroom units.

- 1 x 3 bedroom units.

- Lift lobby and fire stairs.

Roof Plan

- Roof top communal open space catering for approximately 300sqm.

- Covered and open areas and landscaped garden beds along the edges

- BBQ

- Accessible toilet

- Lift lobby and fire stairs.

DESCRIPTION OF THE SITE AND LOCALITY

25. The subject site is legally identified as Lots 10 and 11 in DP 625850, and has a street address of 71 – 73 Jubilee Avenue, Kogarah. The site is located on the corner of Princes Highway and Jubilee Avenue.

Figure 3: The subject site as viewed from Jubilee Avenue

26. The subject site is located within 800m of Carlton Railway Station and approximately 1.5km to the south west of the Kogarah Town Centre.

27. The site is located off Jubilee Avenue with a frontage of approximately 28.43m to Jubilee Avenue, a secondary frontage of 29.055m to Princes Highway with a splay to the corner of Jubilee Avenue and Princes Highway of 4.27m. The site is currently occupied by a single storey building currently used for ute and van hire purposes with a majority of the site a hardstand area. Access to the site is currently via Jubilee Avenue.

28. The site is irregular in shape with a total area of 1074sqm and a slope of approximately 1.2m from the north west to the south-east. Vehicular and pedestrian access to the site is via Jubilee Avenue.

29. Immediately to the north west of the site at 65 Jubilee Avenue is Carlton Public School. Immediately to the south east of the site at 253 Princes Highway is an existing single storey building with an at grade car park accessed via Ecole Street. A development application was lodged on this site (see figure 4) for a six (6) storey shop top housing development (DA2019/0116) which is currently under appeal with the Land and Environment Court.

Figure 4: Photomontage of proposed development at 253 Princes Highway, Carlton (Source Urban Link, 2019)

30. A development application was also lodged for the site located to the south west of 253 Princes Highway. The proposal is for a five (5) storey shop top housing development at 261 Princes Highway (DA2018/0059) which is currently under assessment (see Figure 5).

Figure 5: Photomontage of proposed development at 261 Princes Highway, Carlton (Source MHNDUNION, 2018)

31. Across the Princes Highway from the site at 124 Princes Highway is the St Georges Leagues Club and associated child care centre, with the Beverley Park Golf Club further to the south east. To the north west of the subject site across Jubilee Avenue is Jubilee Oval and to the north east is Kogarah Park. To the west of the site in Ecole Street are a number of residential dwelling houses.

32. To provide some further context Council has amended its planning controls on 26 May 2017 and introduced a new zoning, B6 – Enterprise Corridor applying to land fronting the Princes Highway between Westbourne Street and Jubilee Avenue and half of the block between Francis Street and Westbourne Street (see figure 6). The new zoning provides a height and floor space uplift to allotments in this area to permit a higher density of development.

Figure 6: B6 – Enterprise Corridor zone shown in dark blue

Planning Assessment

33. The subject site has been inspected and the development has been assessed under the relevant Section 4.15, Matters for Consideration of the Environmental Planning and Assessment Act 1979.

Environmental Planning Instruments

State Environmental Planning Policies

34. Compliance with relevant State Environmental Planning Policies is summarised in the table as follows and discussed in more detail thereafter.

State Environmental Planning Policy	Complies
State Environmental Planning Policy No 55 - Remediation of Land	Yes
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004	Yes
State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017	Yes
State Environmental Planning Policy No. 65 - Design Quality of Residential Apartment Development	Yes
State Environmental Planning Policy – Infrastructure	Yes

State Environmental Planning Policy No 55 - Remediation of Land

35. SEPP 55 aims to promote the remediation of contaminated land in order to reduce the risk of harm to human health or any other aspect of the environment.

36. Clause 7 requires contamination and remediation to be considered in determining a development application. The consent authority must not consent to the carrying out of development on land unless it has considered whether or not the land is contaminated.

37. A Preliminary Site Investigation Report No E23861.E01 dated 6 July 2018 prepared by eiaustralia was submitted with the application, which concludes:

‘A conceptual site model (CSM) was derived for the site which identified potential contaminating sources that may have occurred and evaluated the likelihood for relevant exposure pathways to be complete. EI considers there is a medium potential for contamination to be present on-site given the prolonged residential use of the site. Fill soils of unknown origin, weathering of building structures, spills from parked vehicles and vehicle maintenance, and pesticide use beneath building structures were considered to present the main sources of contamination.

Taking into account the above considerations and subject to the statement of limitation (Section 8), EI conclude that there is potential for contamination to be present on site. With consideration given to the nature of the proposed land use and potential contamination risks to end users of the site, a Hazardous Materials Survey of existing site structures, as well as a detailed site investigation (DSI) will be required to characterise soils and ground water, and ascertain the presence of any contamination onsite. EI consider that the site can be made suitable for the proposed use, subject to the implementation of recommendations detailed in Section 7.

38. Based on the information provided, a Detailed Site Investigation Report was required.

39. A Detailed Site Investigation Report No E23861.E02 Rev 1 dated 3 July 2019 prepared by eiaustralia was submitted to Council on 3 July 2019 which stated:

BACKGROUND

EI Australia prepared a PSI for the site, which identified the potential for contamination to be present within soils and groundwater at the site located at 71 – 73 Jubilee Avenue, Carlton. The site is the location of a proposed mixed use development.

The PSI concluded that EI considers there is a medium potential for contamination to be present on-site given the prolonged residential use of the site. The PSI recommended the following be undertaken:

· A Hazardous Materials Survey should be completed before commencement of demolition works, to identify any hazardous materials present within the building structure.

· A Detailed Site Investigation (DSI) is to be completed to characterise site soils and groundwater to provide baseline data for evaluation of any remedial and management requirements that may be necessary to allow the site to be made suitable for the proposed residential development.

CONCLUSION

· A previous Preliminary Site Investigation (EI PSI, 2018) conducted by EI identified there to be a medium potential for contamination to be present on-site given the prolonged commercial use of the site;

· Fill soils of unknown origin, weathering of building structures, spills from parked vehicles and vehicle maintenance, and pesticide use beneath building structures were considered to present the main sources of contamination.

· Soil results reported no exceedances of HM, BTEX, TRHs, PAHs, OCPs, OPPs, PCBs and asbestos in relation to the adopted health based guidelines.

· Groundwater results reported no exceedances of BTEX, TRHs, PAHs, OCPs, OPPs, and PCBs, in relation to the adopted health based guidelines however there were some minor exceedances in relation to copper, nickel and zinc;

· Soil contamination was not identified across the site and EI consider potential risks of exposure to human health from soil to be low;

· Although there are some minor metal elevations in the groundwater, these are not indicative of onsite contamination and EI consider potential risks of exposure to human health from groundwater to be low; and

· Previously known data gaps and potential contamination sources outlined in Section 4.1 have been addressed.

Based on the findings from this DSI, conducted in accordance with the investigation scope agreed with the client, and with consideration of the Statement of Limitations (Section 11), EI conclude that soil and groundwater contamination was not identified during the execution of this investigation. It is concluded that soil and groundwater quality at the site is suitable to allow the mixed commercial and residential development.’

40. Based on the information provided, a contingency condition has been included in the recommended conditions detailing what is required to take place should unexpected contamination be found during demolition, excavation and construction.

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

41. The State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 aims to ensure consistency in the implementation of a scheme to encourage sustainable residential development throughout New South Wales (also referred to as the ‘BASIX scheme’).

42. A BASIX certificate accompanies the DA verifying that the relevant water, energy and thermal comfort targets have been met by the proposal. Conditions of consent have been included in the recommendation to ensure the commitments required under the BASIX certificate will be satisfied by the proposed development.

State Environmental Planning Policy (Infrastructure) 2007

43. The aim of the Infrastructure SEPP is to facilitate the effective delivery of infrastructure across the State. The Policy also examines and ensures that the acoustic performance of buildings adjoining a rail corridor or busy arterial road is acceptable and internal amenity within units is reasonable given the impacts of adjoining infrastructure development

44. The DA was referred to Ausgrid on 25 October 2019 in accordance with Clause 45 of State Environmental Planning Policy (Infrastructure) 2007. At the time of writing this report, no response had been received. The DA may be determined in the event that no response has been received from Ausgrid within twenty one (21) days, ie 15 November 2019.

45. Clauses 101 (Development with a frontage to a classified road), 102 (Impact of road noise or vibration on non-road development) and 103 (Excavation in or immediately adjacent to corridors) of the SEPP, are relevant to this DA on the basis that the proposal involves the construction of residential accommodation on land adjacent to the road corridor of Princes Highway (having an annual average daily traffic volume exceeding 20,000 vehicles) and is likely to be adversely affected by road noise and/or vibration.

46. The application was referred to Roads and Maritime Services (RMS) for comment as Princes Highway is an arterial road under their jurisdiction and RMS concurrence is required in accordance with Clause 101 of the Infrastructure SEPP. On 25 October 2019 the proposal was referred to the RMS. RMS provided a formal response on 19 November 2019 and raised no objection to the proposed development subject to the imposition of standard conditions which would be included as part of the consent if approval was to be granted.

47. Clause 102 of the SEPP is relevant and states:

(a) in any bedroom in the residential accommodation—35 dB(A) at any time between 10 pm and 7 am,

(b) anywhere else in the residential accommodation (other than a garage, kitchen, bathroom or hallway)—40 dB(A) at any time.

48. An Acoustic report was submitted with the application prepared by Koikas Acoustics Pty Ltd, dated 10 April 2018. The report addresses road traffic noise impact from Princes Highway and adjoining roads, mechanical plant noise and acoustic privacy between units. Although the Infrastructure SEPP stipulates minimum noise standards but only focuses on bedroom areas. The Draft Guidelines (Development near Rail Corridors and Busy Roads – Interim Guideline) include noise levels to be achieved for other habitable areas (living and dining spaces, excluding kitchens, garages, hallways etc) of 40dB(A) at anytime.

49. If the development is approved a condition on the consent will require the recommendations of the acoustic report to be implemented during the construction of the building and appropriately certified to be consistent with the recommendations of the acoustic report after installation and prior to occupation. Relevant conditions are imposed to ensure this occurs if approval is granted.

50. The provisions and requirements of the Infrastructure SEPP have been addressed and satisfied by the proposal.

State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017

51. The State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (‘Vegetation SEPP’) regulates clearing of native vegetation on urban land and land zoned for environmental conservation/management that does not require development consent.

52. The Vegetation SEPP applies to clearing of:

a. Native vegetation above the Biodiversity Offset Scheme (BOS) threshold where a proponent will require an approval from the Native Vegetation Panel established under the Local Land Services Amendment Act 2016; and

b. Vegetation below the BOS threshold where a proponent will require a permit from Council if that vegetation is identified in the Council’s Development Control Plan (DCP).

53. The Vegetation SEPP repeals clauses 5.9 and 5.9AA of the Standard Instrument - Principal Local Environmental Plan, with the regulation of the clearing of vegetation (including native vegetation) below the BOS threshold being through any applicable DCP.

a. No issues arise in terms of the provisions of the Vegetation SEPP, as there is no significant vegetation on the site or within the footpath area of Jubilee Avenue or Princes Highway immediately fronting the site.

54. There are however, three (3) significant trees (see figure 7) located on the adjoining site at 65 Jubilee Avenue, being Carlton Public School. Two Lemon Scented Gums (Trees 1 and 3) and a Broad Leaved Paperback (Tree 2).

55. Council’s Arborist has advised that the extent of excavation for the basement carpark will have an adverse impact upon the health of the trees located on the adjoining site at Carlton Public School, in particular the Broad Leaved Paperback, tree 2 in figure 7.

56. This tree is identified as having a tree protection zone (TPZ) of 12m. The basement excavation currently extends to within 3m of the property boundary where the tree is located. Councils Arborist has advised that the basement will need to be setback a minimum of 5m from the allotment boundary to ensure the 10% encroachment of T2s TPZ is complied with under AS3959-2009 Protection of Trees on Development Sites, and to ensure trees remain viable. Currently the proposal demonstrates a 19.55% incursion into the TPZ of T2. The most northern wall of the basement entering and exiting the development is the area of encroachment. This needs to be redesigned to ensure that no greater than a 10% or close to this figure is achieved.

Figure 7: Three (3) trees located on Carlton Public School

State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development

57. The State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65) aims to improve the design quality of residential apartment development in New South Wales.

58. The proposed development meets the pre-requisites for the application of the SEPP 65 in that it constitutes development for the purpose of ‘shop top housing’ in a proposed building of more than three (3) storeys and having more than four (4) dwellings. Therefore, it must be assessed against the provisions of SEPP 65 and the Apartment Design Guide (ADG).

59. A design verification statement dated 4 April 2018 has been provided by Jim Apostolou Registered Architect (Registration No. 7490) in accordance with Clause 50 of the Environmental Planning and Assessment Regulation 2000.

60. The DA has been reviewed by the Design Review Panel (DRP) and their comments are further detailed in the DRP discussions below.

Design Review Panel

61. The initial plans that accompanied the application were referred to the Design Review Panel (DRP) on 4 October 2018. The application was previously reviewed at Pre DA Stage and the comments in relation to that submission are reiterated below in italics, with comments in relation to the current application following. The Panel was generally supportive of the form and character of the design, but could not support any floor space in excess of the FSR control. The design quality principles of SEPP 65 are addressed as follows, in the context of the DRP comments. Commentary in response has been provided by the Assessment Officer where necessary.

SEPP 65 – Design Quality of Residential Flat Buildings

DRP Comment

General comment

Context and Neighbouring

Character

Responding to context involves identifying the desirable elements of an area’s existing or future character. Well-designed buildings respond to and enhance the qualities and identity of the area including the adjacent sites, streetscape and neighbourhood.

Consideration of local context is important for all sites, including sites in established areas, those undergoing change or identified for change.

Pre DA DRP comments

The site is located on the corner of Princes Highway and Jubilee Avenue and is subject to constant noise and pollution from the arterial road at this intersection. It is currently used for the purpose of a vehicle hire business. It immediately adjoins a primary school, Carlton Public, to the north west. Within the school site is a row of mature Eucalypts which overhang the side boundary and provide significant amenity to the subject site. The site adjoins a commercial premises on the common boundary to the south west.

Close by on the opposite side of Jubilee Avenue is the major sporting venue Jubilee Oval, and immediately opposite is a public park, Jubilee Park. The area is subject to high pedestrian and traffic movement and congestion generated by events at Jubilee Oval. An approximate ninety five (95) place child care centre is proposed for the former Sizzler site immediately opposite on the Princes Highway.

The Panel questioned the currency of the site survey provided and advises that a new survey should be commissioned which confirms the northern boundary, and must include the specific locations and levels of the trees on the adjoining site. As well an arborist report must be prepared, as it is critical that these trees be retained, protected and opportunities provided for healthy growth.

DRP DA Comments

A new survey has been carried out which confirms the northern boundary and the location of the trees. An arborist report has been prepared. See ‘Landscape’ below.

The proposal has been amended after advice received from the Panel.

Contextually this block and a number of blocks between Westbourne Street and Jubilee Avenue have been rezoned to allow developments that permit a floor space of 2:1 and a maximum height of 21m.

The introduction of the B6 zone aims to ensure that bulky goods retail is grouped at a highly accessible location close to the major centre. Whilst also permitting a mix of uses such as business, office and light industry. Residential dwellings are also permissible however as the main and future objective of the zone is to encourage the redevelopment of commercial development, the amount of floor space for residential is restricted. The proposal needs to increase the amount of commercial space and reduce the amount of residential floor space.

Built Form and Scale

Good design achieves a scale, bulk and height appropriate to the existing or desired future character of the street and surrounding buildings.

Appropriate built form defines the public domain, contributes to the character of streetscapes and parks, including their views and vistas, and provides internal amenity and outlook.

Pre DA DRP comments

The design proposes a five (5) storey building with commercial/retail at ground level and four (4) residential floors above, and the height is well within the LEP height control of 21m. It is setback 3m from both Princes Highway and Jubilee Avenue boundaries. The floor level on the corner is set down approximately 800mm from the adjoining boundary. The Panel recommends that this is lifted to be level with the adjoining footpath on the corner.

DRP DA Comments

The ground floor level has been lifted as recommended to provide corner access.

Pre DA DRP comments

In principle the built form is acceptable subject to issues raised below under ‘Amenity’. There is opportunity to increase the dimensions of the deep soil in the north west corner of the site. There is an existing mature Eucalypt in this corner (sited on the adjacent property) which would benefit from extended deep soil area. At the same time this area could provide welcome amenity for staff in commercial premises as an external lunch/break out space. The basement must be setback to achieve this and it appears there is potential to relocate the bicycle parking to the ground floor and make the adjustments required.

DRP DA Comments

This area has been provided as recommended.

The proposal now complies with the permitted FSR development standard of KLEP 2012.

The proposals bulk and scale is an appropriate response to the up-zoning of the site.

Density

Good design achieves a high level of amenity for residents and each apartment, resulting in a density appropriate to the site and its context.

Pre DA DRP comments

The proposed density is 2.1:1 which exceeds the LEP FSR control of 2:1. There is no apparent public benefit or justification to exceed the control.

DRP DA Comments

The proposed density at 2.14:1 exceeds the permissible density of 2:1 by approximately 150sqm and 7%. This cannot be supported despite the arguments advanced in the Clause 4.6 Variation Request in view of the compromised amenity of the units because of the major road noise issues. Nor, as advised in relation to the PRE-DA scheme, is there any significant public benefit which would justify non-compliance.

As mentioned above, the proposal now complies with the maximum FSR for the site.

Note: Although compliant with the FSR control, the proposal fails to meet the minimum commercial floor space component of the FSR (which equates to 0.7:1 of the 2:1 floor space).

Sustainability

Good design combines positive environmental, social and economic outcomes.

Pre DA DRP comments

As mentioned above deep soil dimensions must be increased where possible.

DRP DA Comments

A small increase in deep soil dimensions has been provided at the rear of the site.

Pre DA DRP comments

The impact of major road noise poses serious challenges in relation to natural ventilation of units fronting the highway. See comment below under ‘Amenity’.

DRP DA Comments

The proponent’s acoustic report requires mechanical ventilation to ‘all habitable spaces’ (p30). Further investigations are required in order to overcome this issue.

The proposal is BASIX compliant.

The basement level has been reconfigured to increase the amount of deep soil area. The deep soil zone is compliant with the ADG requirements.

Landscape

Pre DA DRP comments

See comments under ‘Context’ and ‘Built Form’ regarding retaining and protecting trees. Street trees should be provided to Jubilee Avenue in consultation with Council and ensuring safe and direct pedestrian movement.

DRP DA Comments

As above. Great care must be taken with the treatment and construction around the three (3) significant trees on the adjoining property to the north west. Management procedures must be worked up with the arborist in order to protect these trees.

A strong screen planting is desirable along this north west boundary to protect the privacy of the adjacent school. This generally appears to be proposed in the landscape design but requires verification by Council.

The landscape design does not provide for trees along Jubilee Avenue as recommended above nor are there any trees on the Princes Highway frontage. The development would benefit from substantial tree planting along both street frontages. This should be provided in consultation with Council.

High quality landscaping is provided at ground level and within the rooftop communal open space area.

Should the proposal be approved conditions of consent could be imposed requiring the planting of street trees along the Princes Highway and Jubilee Avenue frontage.

Amenity

Good design positively influences internal and external amenity for residents and neighbours. Achieving good amenity contributes to positive living environments and resident wellbeing.

Pre DA DRP comments

The following issues should be addressed:

· There is presently only one (1) lift proposed to service both the commercial and residential requirements. Two (2) lifts should be provided so that commercial activities do not hinder resident’s activities and access, with a goods lift provided for the commercial premises.

DRP DA Comments

A separate goods lift has been provided as recommended.

Pre DA DRP comments

· Noise and pollution from the highway severely compromises the amenity of the units facing the road, and the provision of natural ventilation cannot be achieved by opening windows directly to the road. Four (4) of the six (6) units on each level have living rooms and bedrooms facing the highway. It is considered that an alternative floor plan must be explored which minimises the number of units facing the highway. With careful planning it appears that this could be reduced to a maximum of two (2) units per floor. Acoustic advice should be obtained to inform the design of windows and balconies facing the highway.

DRP DA Comments

The floor plan has been revised so that only two (2) units face directly to Princes Highway, although in addition both bedrooms to the south western units also face directly to the Highway, so that noise impacts from the Highway remain a major problem. As noted above the acoustic report recommends that all habitable spaces will have to be mechanically ventilated, which is unfortunate. It is recommended that further detailed design measures should be explored to mitigate noise impact such as re-orientating the stack of corner units away from the Highway, and integrating some acoustic buffer into the applied screens on the exterior façade of the building.

The revised plans have removed the separate goods lift since the DRP meeting. This has been deleted as the loading bay has been relocated at ground level with an accessible ramp to the commercial tenancy. This is however not supported and will require a review of the loading bay location and may require the reinstallation of the goods lift.

All units will provide a high level of internal and external amenity and the development complies overall with the ADG controls for solar access, cross ventilation, unit sizes and private open space areas.

Safety

Good design optimises safety and security within the development and the public domain. It provides for quality public and private spaces that are clearly defined and fit for the intended purpose.

Opportunities to maximise passive surveillance of public and communal areas promote safety.

A positive relationship between public and private spaces is achieved through clearly defined secure access points and well lit and visible areas that are easily maintained and appropriate to the location and purpose.

Pre DA DRP comments

The designer should remove stairs and sudden level changes in the streetscape and provide level access around the site frontages.

DRP DA Comments

This has been revised.

The main entrance to the residential units is recessed further than desirable, creating potential security issues. The front door should be moved closer to the street frontage and a more attractive entrance created. See comment below under ‘Housing Diversity and Social Interaction’.

The proposal meets the requirement of CPTED.

Housing Diversity and Social Interaction

Good design achieves a mix of apartment sizes, providing housing choice for different demographics, living needs and household budgets.

Well-designed apartment developments respond to social context by providing housing and facilities to suit the existing and future social mix.

Good design involves practical and flexible features, including different types of communal spaces for a broad range of people and providing opportunities for social interaction among residents.

Pre DA DRP comments

At least one (1) x three (3) bedroom unit should be included given the sites proximity to schools and child care.

DRP DA Comments

The unit mix has been improved and is satisfactory.

Pre DA DRP comments

The provision of communal space and facilities at roof level as proposed is commended, but there should be at least a small enclosed space so the facilities can be used in all weather conditions.

DRP DA Comments

The Panel continues to recommend that a small enclosed space be provided on the rooftop.

The main entrance should be enhanced by providing a widened section with some seating immediately inside the main entrance doors - see also comment above under ‘Safety’.

The plans incorporate one (1) x 3 bedroom unit on the fourth floor, located in the southern part of the building.

A suitable unit mix is proposed with a variety of unit layouts.

A covered area has now been provided in the northern part of the roof top communal open space.

Aesthetics

Good design achieves a built form that has good proportions and a balanced composition of elements, reflecting the internal layout and structure.

Good design uses a variety of materials, colours and textures.

The visual appearance of a well designed apartment development responds to the existing or future local context, particularly desirable elements and repetitions of the streetscape.

Pre DA DRP comments

Acceptable.

DRP DA Comments

Continues to be so.

The schedule of colours, materials and finishes are suitable in the locality.

Apartment Design Guide

62. Clause 28 of SEPP 65 requires the consent authority to take into consideration the provisions of the Apartment Design Guide. An assessment of the proposed development against the relevant design criteria of the Apartment Design Guide (ADG) is detailed in the compliance table as follows.

Section	Design Criteria	Proposed	Comply
3D - Communal and public open space	Communal open space has a minimum area equal to 25% of the site (1074 x 0.25 = 268.5sqm) Where it cannot be provided on ground level it should be provided on a podium or roof Developments achieve a minimum of 50% direct sunlight to the principal usable part of the communal open space for a minimum of 2 hours between 9 am and 3 pm on 21 June (mid-winter)	The primary area of communal open space is provided on the rooftop and has an area of 300sqm (28%). 2 hours of sunlight is achieved to at least 50% of the rooftop communal open space area, which is the principle area of communal open space for the development	Yes
3E – Deep soil zones	Deep soil zones are required at a sliding scale in this clause. For a site area of 1074sqm, the deep soil zone requirement is 7% with minimum 3m dimensions.	126sqm (11.7%)	Yes
3F – Visual privacy	Separation between windows and balconies is provided to ensure visual privacy is achieved. Minimum required separation distances from buildings to the side and rear boundaries are as follows: Up to 12m (4 storeys) Habitable - 6m Non-habitable – 3m Up to 25m (5-8 storeys) Habitable – 9m Non-habitable – 4.5m	Ground to Level 4: Nil (blank wall) – south east 6m – north west N/A	Yes N/A
3G – Pedestrian Access and Entries	Building entries and pedestrian access connects to and addresses the public domain Multiple entries (including communal building entries and individual ground floor entries) should be provided to activate the street edge	Achieved	Yes
3H – Vehicle Access	Vehicle access points are designed and located to achieve safety, minimise conflicts between pedestrians and vehicles and create high quality streetscapes	The main driveway access point has been located from the secondary street frontage in Jubilee Avenue. A loading bay is also proposed at ground level with separate driveway access from Jubilee Avenue. This loading bay does not permit a vehicle to enter and leave the site in a forward direction.	The location of the driveway is the most appropriate location for the subject site; however the loading bay location is not acceptable given vehicles need to reverse into Jubilee Avenue.
3J – Bicycle and car parking	For development in the following locations: · on sites that are within 800m of a railway station or light rail stop in the Sydney Metropolitan Area; or · on land zoned, and sites within 400 metres of land zoned, B3 Commercial Core, B4 Mixed Use or equivalent in a nominated regional centre the minimum car parking requirement for residents and visitors is set out in the Guide to Traffic Generating Developments, or the car parking requirement prescribed by the relevant council, whichever is less The car parking needs for a development must be provided off street	Given the site is within 800m of Carlton Rail Station the required residential parking is calculated in accordance with the RMS Guide for Traffic Generating Development. 1 bedroom apartments 0.6 x 6 = 3.6 spaces 2 bedroom apartments 0.9 x 16 = 14.4 spaces 3 bedroom apartments 1.4 x 1 = 1.4 spaces 1 Visitor space per 5 apartments = 4.6 A visitor space doubles as a carwash bay on basement level 1. Eleven (11) bicycle spaces have been provided. 3 motorcycle spaces have been provided.	Yes. With the exception of bicycle spaces. The proposal is deficient in bicycle parking as 12 are required and 11 provided. This could be provided through a condition of consent should the proposal be supported.
4A – Solar and daylight access	Living rooms and private open spaces of at least 70% of apartments in a building receive a minimum of 2 hours direct sunlight between 9am and 3pm at mid-winter in the Sydney Metropolitan Area and in the Newcastle and Wollongong local government areas A maximum of 15% of apartments in a building receive no direct sunlight between 9am and 3pm at mid-winter	86.9% (20 units) achieve a minimum of 2 hours sunlight in midwinter. 13.1% (3 units) Units A1.05, A2.05 and A3.05.	Yes Yes
4B – Natural ventilation	At least 60% of apartments are naturally cross ventilated in the first nine storeys of the building. Apartments at ten storeys or greater are deemed to be cross ventilated only if any enclosure of the balconies at these levels allows adequate natural ventilation and cannot be fully enclosed. Overall depth of a cross-over or cross-through apartment does not exceed 18m, measured glass line to glass line.	60.8% (14 units) are cross ventilated.	Yes
4C – Ceiling heights	Measured from finished floor level to finished ceiling level, minimum ceiling heights are: · Habitable rooms 2.7m · Non-habitable rooms 2.4m · For 2 storey apartments: 2.7m for main living area floor 2.4m for second floor, where its area does not exceed 50% of the apartment area · Attic spaces: 1.8m at edge of room with a 30 degree minimum ceiling slope · If located in mixed use areas - 3.3m for ground and first floor to promote future flexibility of use These minimums do not preclude higher ceilings if desired.	All of the proposed units have ceiling heights of 2.7m. Commercial – 3.7m	Yes
4D – Apartment size and layout	Apartments are required to have the following minimum internal areas: Studio – 35sqm 1 bedroom – 50sqm 2 bedroom – 70sqm 3 bedroom – 90sqm The minimum internal areas include only one bathroom. Additional bathrooms increase the minimum internal area by 5sqm each A fourth bedroom and further additional bedrooms increase the minimum internal area by 12sqm each.	All apartments meet minimum internal size requirements. 51-57sqm. 75-81sqm. 105sqm. Calculated accordingly. N/A	Yes Yes N/A
	Every habitable room must have a window in an external wall with a total minimum glass area of not less than 10% of the floor area of the room. Daylight and air may not be borrowed from other rooms.	Provided and within the prescribed range.	Yes
	Habitable room depths are limited to a maximum of 2.5m x the ceiling height.	All within the prescribed range.	Yes
	In open plan layouts (where the living, dining and kitchen are combined) the maximum habitable room depth is 8m from a window	All within the prescribed range.	Yes
	Master bedrooms have a minimum area of 10sqm and other bedrooms 9sqm (excluding wardrobe space)	All master bedrooms comply.	Yes
	Bedrooms have a minimum dimension of 3m (excluding wardrobe space)	All bedrooms comply.	Yes
	Living rooms or combined living/dining rooms have a minimum width of: · 3.6m for studio and 1 bedroom apartments · 4m for 2 and 3 bedroom apartments	All living rooms comply.	Yes
	The width of cross-over or cross-through apartments are at least 4m internally to avoid deep narrow apartment layouts.	All of the proposed units are in excess of 4m in width internally.	Yes
4E – Private open space and balconies	All apartments are required to have primary balconies as follows: · Studio apartments require 4sqm with no min depth · 1 bedroom apartments require 8sqm with min depth 2m · 2 bedroom apartments require 10sqm with min depth 2m · 3+ bedroom apartments require 12sqm with minimum 2.4m depth The minimum balcony depth to be counted as contributing to the balcony area is 1m. For apartments at ground level or on a podium or similar structure, a private open space is provided instead of a balcony. It must have a minimum area of 15sqm and a minimum depth of 3m.	All balconies achieve the minimum area and depth requirements. Calculated accordingly. N/A	Yes Yes N/A
4F – Common circulation and spaces	The maximum number of apartments off a circulation core on a single level is eight.	A maximum of 6 units at each level.	Yes
4F – Common circulation and spaces	For buildings of 10 storeys and over, the maximum number of apartments sharing a single lift is 40.	N/A	N/A
4G - Storage	In addition to storage in kitchens, bathrooms and bedrooms, the following storage is provided: · Studio apartments require 4m³ · 1 bedroom apartments require 6m³ · 2 bedroom apartments require 8m³ · 3+ bedroom apartments require 10m³ At least 50% of the required storage is to be located within the apartment.	All units have compliant total storage volumes as per the ADG for each unit type. At least 50% of the required storage is located within the apartment.	Yes Yes
4H – Acoustic Privacy	Adequate building separation is provided within the development and from neighbouring buildings/adjacent uses. Window and door openings are generally orientated away from noise sources Noisy areas within buildings including building entries and corridors should be located next to or above each other and quieter areas next to or above quieter areas Storage, circulation areas and non-habitable rooms should be located to buffer noise from external sources	A detailed assessment in respect to the acoustic compliance of the scheme has been discussed in detail above. If the application was to be supported conditions would be imposed.	Yes
4J – Noise and Pollution	To minimise impacts the following design solutions may be used: • physical separation between buildings and the noise or pollution source • residential uses are located perpendicular to the noise source and where possible buffered by other uses • buildings should respond to both solar access and noise. Where solar access is away from the noise source, non habitable rooms can provide a buffer • landscape design reduces the perception of noise and acts as a filter for air pollution generated by traffic and industry	The design solution within the ADG which seeks to minimise noise and acoustic impacts have been considered through the design and layout of apartments. If the application was to be supported than a condition for compliance with the acoustic criterion would be imposed.	Yes
4K- Apartment Mix	A range of unit types and sizes is provided to cater for different household types now and into the future The unit mix is distributed to suitable locations within the building	The development offers a mix of 1, 2 and 3 bedroom units in the following manner; 6 x 1 bedroom units = 26% 16 x 2 bedroom units = 70% 1 x 3 bedroom = 4%	Yes
4L – Ground floor apartments	Street frontage activity is maximised where ground floor units are located. Design of ground floor units delivers amenity and safety for residents	No ground floor units proposed.	N/A
4M- Facades	Facades should be well resolved with an appropriate scale and proportion to the streetscape and human scale.	Building façade provides articulation along the street frontages at an appropriate scale.	Yes
4N- Roof Design	Roof treatments are integrated into the building design and positively respond to the street. Opportunities to use roof space for residential accommodation and open space are maximised. Incorporates sustainability features.	The roof design is a standard flat roof form. The roof includes communal open space which complies with the criterion of the ADG.	Complies
4O – Landscape Design	Landscape design is viable and sustainable, contributes to the streetscape and amenity	Suitable landscaping has been proposed as referenced in the landscaping plan.	Yes
4P – Planting on structures	Planting on structures – appropriate soil profiles are provided, plant growth is optimised with appropriate selection and maintenance, contributes to the quality and amenity of communal and public open spaces	Suitable landscaping is proposed as referenced in the landscaping plan.	Yes
4Q – Universal Design	Universal design – design of units allow for flexible housing, adaptable designs, accommodate a range of lifestyle needs	Satisfactory, adaptable units proposed. A1.01, A2.01 and A3.01.	Yes
4R – Adaptive reuse	Adaptive reuse as unit of existing buildings- new additions are contemporary and complementary, provide residential amenity while not precluding future adaptive reuse.	N/A as the development is new.	N/A
4S Mixed Use	Mixed use developments are provided in appropriate locations and provide active street frontages that encourage pedestrian movement Residential levels of the building are integrated within the development, and safety and amenity is maximised for residents.	The proposal provides an active street frontage and an appropriate relationship between the development and the public domain. The residential units are located from the first floor level and above accessed via a suitable sized entry foyer on the ground floor.	Yes
4U – Energy Efficiency.	Development incorporates passive environmental design, passive solar design to optimise heat storage in winter and reduce heat transfer in summer, natural ventilation minimises need for mechanical ventilation	Appropriate building orientation and BASIX Certificate has been provided.	Yes
4V – Water management and conservation	Water management and conservation – potable water use is minimised, stormwater is treated on site before being discharged, flood management systems are integrated into the site design	The stormwater drainage plans have been assessed and reviewed by Council’s Drainage Engineers and found to be satisfactory. .	Yes
4W – Waste Management	Waste management – storage facilities are appropriately designed, domestic waste is minimised by convenient source separation and recycling	The bin stores are appropriately located within basement level 1. .	Yes
4X – Building Maintenance	Building design provides protection form weathering Enables ease of maintenance, material selection reduces ongoing maintenance cost	Satisfactory.	Yes

Draft Environmental Planning Instruments

Draft Environment SEPP

63. The Draft Environment SEPP was exhibited from 31 October 2017 to 31 January 2018.

64. This consolidated SEPP proposes to simplify the planning rules for a number of water catchments, waterways, urban bushland, and Willandra Lakes World Heritage Property.

· Changes proposed include consolidating the following seven existing SEPPs:

· State Environmental Planning Policy No. 19 – Bushland in Urban Areas

· State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011

· State Environmental Planning Policy No. 50 – Canal Estate Development

· Greater Metropolitan Regional Environmental Plan No. 2 – Georges River Catchment

· Sydney Regional Environmental Plan No. 20 – Hawkesbury-Nepean River (No.2-1997)

· Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005

· Willandra Lakes Regional Environmental Plan No. 1 – World Heritage Property.

65. The proposal is consistent with the provisions of this Draft Instrument given there is no vegetation impacted by the proposed development.

Draft Remediation of Land SEPP

66. The Department of Planning and Environment has announced a Draft Remediation of Land SEPP, which will repeal and replace the current State Environmental Planning Policy No 55—Remediation of Land.

67. The main changes proposed include the expansion of categories of remediation work which requires development consent, a greater involvement of principal certifying authorities particularly in relation to remediation works that can be carried out without development consent, more comprehensive guidelines for Councils and certifiers and the clarification of the contamination information to be included on Section 149 Planning Certificates.

68. Whilst the proposed SEPP will retain the key operational framework of SEPP 55, it will adopt a more modern approach to the management of contaminated land.

69. Based on the Preliminary Site Investigation Report provided, a Detailed Site Investigation Report was required.

70. A Detailed Site Investigation Report No E23861.E02 Rev 1 dated 3 July 2019 prepared by eiaustralia was submitted to Council on 3 July 2019 which stated:

BACKGROUND

· A Hazardous Materials Survey should be completed before commencement of demolition works, to identify any hazardous materials present within the building structure.

CONCLUSION

· Soil results reported no exceedances of HM, BTEX, TRHs, PAHs, OCPs, OPPs, PCBs and asbestos in relation to the adopted health based guidelines.

· Soil contamination was not identified across the site and EI consider potential risks of exposure to human health from soil to be low;

· Previously known data gaps and potential contamination sources outlined in Section 4.1 have been addressed.

71. An unexpected finds condition has been recommended to be imposed should any contamination be experienced during demolition or excavation.

72. On the above information, site contamination is not suspected. In this regard, no further assessment is warranted with regard to site contamination.

Kogarah Local Environmental Plan 2012

Zoning and Permissibility

73. The subject site is zoned Zone B6 Enterprise Corridor under the provisions of the Kogarah Local Environmental Plan 2012 (KLEP 2012).

74. The proposed development contains residential accommodation and a commercial component which are collectively defined as ‘shop top housing’ which is permissible in the zone.

Figure 8: The subject site outlined in blue

75. The objectives for development in the B6 Enterprise Corridor zone are as follows:

· To promote businesses along the main roads and to encourage a mix of compatible uses.

· To provide a range of employment uses (including business, office, retail and light industrial uses).

· To maintain the economic strength of centres by limiting retailing activity.

· To provide for residential uses, but only as part of a mixed use development.

76. The proposed development is inconsistent with the above zone objectives in that although it provides for additional residential accommodation and a commercial tenancy at the ground floor level, the proposal still fails to provide sufficient commercial space to meet the objectives and intent of the zone. The proposal fails to provide sufficient commercial space that would allow a range of employment uses to maintain opportunities for business and retail development suitable in high exposure locations.

77. The introduction of the new land use zone B6 – Enterprise Corridor Zone was intended to ensure that bulky goods retail, business, office, retail and light industry was appropriately located and encouraged in this area, failure to meet the minimum commercial floor space defeats the intent of the zoning and the amendments to the LEP in that regard. This will set an inappropriate precedent and undermines the objectives of a newly zoned area.

78. The requirement for commercial floor space with an active street frontage was part of the strategic planning outcome sought by the B6 rezoning. Residential apartments are also permissible as a shop top housing development within the zone, however as the main objective of the zone is to encourage the renewal of commercial/bulky goods retailing development, the amount of residential floor space is restricted in this zone to a maximum of 65% of the gross floor area.

79. The proposed location of the loading bay is not appropriately located as a vehicle cannot enter and exit in a forward direction which fails to meet Council’s DCP requirements and is also contrary to the comments provided by the RMS. Given the objective of the zone is to provide a range of employment uses including business, office, retail and light industrial, failure to provide a suitable loading bay is contrary to the zone objectives in that these uses would not be viable without a loading bay.

80. An assessment of the proposed development against the relevant provisions of Kogarah LEP 2012 is detailed in the compliance table below.

Clause	Objectives/Provisions	Comment	Complies
2.2 Zone	B6 Enterprise Corridor	The proposal is defined as ‘shop top housing’ development which is a permissible land use in the zone.	Yes
2.3 Objectives	Objectives of the zone To promote businesses along main roads and to encourage a mix of compatible uses. To provide a range of employment uses (including business, office, retail and light industrial uses). To maintain the economic strength of centres by limiting retailing activity. To provide for residential uses, but only as part of a mixed use development.	Only 12.6% of the development is proposed to be commercial. 87.4% of the development is residential. The percentage of floor space provided for commercial and residential uses is not consistent with the zone objectives in that it does not permit a range of employment uses due to the area of the commercial tenancy. The focus on the zoning is to promote renewal of the up-zoned B6 sites along the Princes Highway through renewal of commercial development permitting residential use but only as a shop top housing development. Design and configuration of the building does not cater for a suitably located loading bay that will cater for the commercial component of the development. Given the zoning is focused on providing a range of employment uses, the lack of a suitably located loading bay does not meet the objectives of the zone to service the needs of the commercial component of the development.	No
4.3 - Height of buildings	The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map. In this case, the relevant map limits the height of buildings on the subject site to 21m.	The proposal has a building height of up to 20.5m (RL 32.00 to the top of the lift over run).	Yes.
4.4 - Floor space ratio	The maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map. In this case, the relevant map limits the floor space ratio for buildings on the subject site to 2:1.	The proposal has a floor space ratio of 2:1.	Yes
4.5 – Calculation of floor space ratio and site area	FSR and site area calculated in accordance with Cl 4.5	Calculated accordingly.	Yes
4.6 Exceptions to Development Standards	The objectives of this clause are as follows: (a) - to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) - to achieve better outcomes for and from development by allowing flexibility in particular circumstances.	The proposal fails to comply with Clause 6.9 of KLEP 2012. Therefore a Clause 4.6 Statement was submitted to justify the non-compliance with the control. See Assessment below	Clause 4.6 variation submitted for non-compliance with Clause 6.9.
5.10 - Heritage conservation	The objectives of this clause are as follows: (a) to conserve the environmental heritage of Kogarah, (b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views, (c) to conserve archaeological sites, (d) to conserve Aboriginal objects and Aboriginal places of heritage significance.	The subject site is not identified as a heritage item or located within a heritage conservation area, nor is it immediately adjoining a heritage item or heritage conservation area. It also contains no recognised archaeological sites or aboriginal objects. The site is opposite a heritage item of local significance known as Kogarah Park/Jubilee Oval (including Reserve, War Memorial and Oval). Given the subject site is located on the opposite side of Jubilee Avenue and the item is to the north eastern side of Kogarah Park it is not envisaged that it would have any adverse impacts on Kogarah Park.	Yes
6.1 - Acid sulfate soils	The objective of this clause is to ensure that development does not disturb, expose or drain acid sulfate soils and cause environmental damage.	The subject site is not identified on the Acid Sulfate Soils Map as being affected by any particular class of acid sulfate soils.	N/A
6.2 - Earthworks	The objective of this clause is 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.	The proposed development includes excavation and associated earthworks to accommodate two levels of basement car parking. The basement carpark essentially extends the full length and width of the site apart from being setback from the north western boundary adjoining Carlton Public School to accommodate for the deep soil zone and the TPZ for the healthy and significant trees located within the school site. This setback is not sufficient to provide an adequate TPZ for the existing trees on the adjoining site, in particular Tree T2, and thus will adversely impact upon the health and longevity of the tree.	No
6.3 - Flood planning	The objectives of this clause are as follows: (a) to minimise the flood risk to life and property associated with the use of land, (b) to allow development on land that is compatible with the land’s flood hazard, taking into account projected changes as a result of climate change, (c) to avoid significant adverse impacts on flood behaviour and the environment.	The lot identified as 73 Jubilee Avenue (Lot 11) is classified as flood affected in the Beverley Park Overland Flow Risk Management Study and Plan 2007. The flood Planning level is identified as RL 10.1m (AHD). The Probable Maximum Flood (PMF) level is identified as RL 11.66m (AHD). The lot is not identified as being within the 1 in 100 year flood extents and as such does not have a 1 in 100 year flood level. The lot identified as No 71 Jubilee Avenue (Lot 10) is not classified as flood affected. The lobby is located at R.L 11.70 with the commercial tenancy at R.L 11.20. Council’s engineer has advised the proposed R.Ls are satisfactory.	Yes. The development has been assessed as satisfactory with respect to flood levels for Lot 11. Lot 10 is not a flood affected lot.
6.5 - Airspace operations	The objective of this clause is to protect airspace around airports	The proposed development will not penetrate the prescribed airspace for Sydney Airport and will not require a ‘controlled activity’ within the meaning of Division 4 of Part 12 of the Airports Act 1996.	Yes
6.9 – Development in Zone B6	The objective of this clause is to provide viability of development and to maintain opportunities for business and retail development that is suited to high exposure locations. No more than 65% of the gross floor area of the building will be used for shop top housing or tourist and visitor accommodation. Consent must not be granted for a land use other than shop top housing or tourist ad visitor accommodation with a gross floor area of less than 500sqm.	Shop top housing is 1878sqm (87.4%) Area of commercial use (other land use) is proposed to be 270sqm (12.6%).	No. A Clause 4.6 variation has been provided.

Clause 4.6 Exceptions to development standards

Detailed assessment of variation to Clause 4.3 Height of Buildings

81. The proposed development seeks a variation to the development standard relating to an additional local provision for Development in Zone B6 (Clause 6.9). The KLEP identifies a maximum gross floor area percentage of no more than 65% is to be used for shop top housing or tourist accommodation (residential component) and the area of any other use must be a minimum of 500sqm. The proposed development provides 1878sqm (87.4%) of shop top housing (residential component) gross floor area and the gross floor area of commercial space is proposed to be 270sqm (12.6%), which is deficient by 230sqm. Any variation to Clause 6.9 Development in Zone B6 can only be considered under Clause 4.6 – Exceptions to Development Standards of the KLEP.

82. Clause 4.6(1) outlines the objectives of the standard which are to “provide an appropriate degree of flexibility in applying certain development standards to particular development” and “to achieve better outcomes for and from development by allowing flexibility in particular circumstances”.

83. The proposal does not provide the minimum 35% of commercial floor space and exceeds the maximum 65% of residential floor space. As mentioned above the proposal provides 87.4% of residential floor space and only 12.6% commercial floor space. The non-compliance creates a development that is inconsistent with the intent and main objective of the newly created B6 Enterprise Corridor zone, which is to encourage appropriate businesses and offer a range of employment opportunities, whilst also permitting a residential component restricted to 65% of the total gross floor area.

84. Clause 4.6(3) states that:

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

- that there are sufficient environmental planning grounds to justify contravening the development standard”

85. To support the non-compliance, the applicant has provided a request for a variation to Clause 6.9 in accordance with Clause 4.6 of KLEP 2012. The Clause 4.6 request for variation is assessed as follows:

Is the planning control in question a development standard?

86. Maximum percentage of shop top housing or tourist accommodation and minimum area of commercial land use under Clause 6.9 of the KLEP 2012 is a development standard.

What are the underlying objectives of the development standard?

87. The objectives of the Development standard under Clause 6.9 of KLEP 2012 are:

(a) to provide for the viability of development in Zone B6 Enterprise Corridor,

(b) to maintain opportunities for business and retail development that is suited to high exposure locations while ensuring that the town centres remain the focus for business and retail activity.

88. In order to address the requirements of Subclause 4.6(4)(a)(ii), the objectives of Clause 6.9 are addressed in turn below.

1(a) To provide for the viability of development in Zone B6 Enterprise Corridor

89. Applicants Comments: “The proposal represents a careful balance of land uses to provide a commercially viable mixed use development of the site. The proposal capitalises on the main road exposure by maximising the use of the ground floor for business and retail purposes by ensuring other ground floor uses are restricted only to those which cannot be located elsewhere, such as the residential lobby, driveway access and essential services. In order to increase the quantum and the proportion of non-residential land uses on the site to meet the numerical requirements of the standard, however it would be necessary to also include business and retail uses of the first floor of the proposed building. The viability of first floor commercial premises, however is extremely marginal and particularly so in highway locations outside of established centres. The first floor does not benefit from main road exposure in the same manner as ground floor showrooms and the out of centre location limits the availability of pedestrian traffic. The proposed mix of uses, therefore, maximises the viability of the proposed development consistent with the objectives of the standard. .

90. Officer’s comment: Objective (a) is aimed at providing a balance of land uses to activate the area. The requirement for commercial floor space and active street frontage was part of the strategic planning outcome sought with the B6 rezoning. The building is located on a prominent corner and it is envisaged that a suitable balance of commercial and residential floor space be provided in accordance with the requirements of the clause. The viability of development in the zone is dependant upon appropriate provisions and services being provided that meet the zone objectives, the focus should be on providing commercial floor space to enable a range of employment opportunities.

91. The non-compliance is considered to have an adverse impact upon the renewal and range of employment within this zone, should the significant variation in floor area of commercial/retail space be supported. This will set an undesirable precedent which will have a negative cumulative impact for future developments within the B6 corridor as the up-zoning of the site was based on the provision of a minimum area of commercial floor space to be provided. The proposal in its current form is not considered to reflect the desired future planning and design outcome sought for this precinct.

1(b) To maintain opportunities for business and retail development that is suited to high exposure locations while ensuring that the town centres remain the focus for business and retail activity.

92. Applicants Comment: “As noted above, the proposal maximises the opportunity for business and retail development on the ground floor, which benefits from the main road exposure. Even though the gross floor area of the ground floor tenancy is less than 500sqm, at 270sqm and on a single level, it is nonetheless a large space suited to a range of smaller bulky goods retail uses (such as tile showrooms, furniture retailers and the like) and business premises. The ground floor space has an almost unencumbered showroom frontage to the Princes Highway which wraps around the corner into Jubilee Ave. By not proposing economical marginal commercial premises on the first floor, which for the reasons described above does not enjoy any particular advantage from main road exposure, the proposal ensures that the town centres remain the focus for business and retail activity.

93. Officer’s Comment: Objective (b) relates to providing sufficient commercial floor space to maintain opportunities for business and retail development suitable for high exposure locations. The introduction of the new B6 zone was intended to ensure bulky goods retail was appropriately located and encouraged in this area, failure to meet the minimum commercial floor space defeats the intent of the zoning and the recent amendments to the LEP in that regard. This will set an inappropriate precedent.

94. Based on the requirements for commercial floor space for the subject site it is not considered that compliance with this control will have an adverse impact upon the focus of the town centre, given the potential land uses likely for the subject site. It is not anticipated that the proposed commercial/retail uses expected to operate within the B6 zone will undermine the viability of the town centre nor is it envisaged that it will provide services that will be in competition with the town centre.

95. In conclusion, the non-compliance along with the inability to provide a suitably compliant loading bay to service the commercial uses will establish an undesirable precedent in the immediate locality and a spaces that is not able to be supported by the necessary servicing vehicles.

Compliance is unreasonable or unnecessary in the circumstances of the case (clause 4.6(3)(a))

96. There have been several Court cases that have established provisions to assist in the assessment of Clause 4.6 statements to ensure they are well founded and address the provisions of Clause 4.6. In Wehbe V Pittwater Council (2007) NSW LEC 827 Preston CJ set out ways of establishing that compliance with a development standard is unreasonable or unnecessary.

97. Preston CJ in the judgement then expressed the view that there are 5 different ways in which an objection may be well founded and that approval of the objection may be consistent with the aims of the policy, as follows (with emphasis placed on number 1 for the purposes of this Clause 4.6 variation:

1. The objectives of the standard are achieved notwithstanding non-compliance with the standard;

2. The underlying objective or purpose of the standard is not relevant to the development and therefore compliance is unnecessary;

3. The underlying object or purpose would be defeated or thwarted if compliance was required and therefore compliance is unreasonable;

98. The Clause 4.6 Statement was prepared in consideration of the recent court cases and their judgements.

99. Applicant’s comments: “The NSW Land and Environment Court in Four2Five Pty Ltd v Ashfield Council (2015) NSWLEC 90, considered how this question may be answered and referred to the earlier Court Decision in Wehbe V Pittwater Council (2007) NSW LEC 82. Under Wehbe, the most common way of demonstrating that compliance is unreasonable or unnecessary, was whether the proposal met the objectives of the standard regardless of the variation. Under Four2five, whilst tis can still be considered under this heading, it is also necessary to consider it under Clause 4.6 (3)(a):

1. The objectives of the standard are achieved notwithstanding non-compliance with the standard;

The proposal represents a careful balance of land uses to provide a commercially viable shop top housing development on the site. The proposal capitalises on the main road exposure by maximising the use of the ground floor for business and retail purposes by ensuring other ground floor uses are restricted only to those which cannot be located elsewhere, such as the residential lobby, driveway access and essential services. In order to increase the quantum and the proportion of non-residential land uses on the site to meet the numerical requirements of the standard, however it would be necessary to also include business and retail uses of the first floor of the proposed building. The viability of first floor commercial premises, however is extremely marginal and particularly so in highway locations outside of established centres. The first floor does not benefit from main road exposure in the same manner as ground floor showrooms and the out of centre location limits the availability of pedestrian traffic. The proposed mix of uses, therefore, maximises the viability of the proposed development consistent with the objectives of the standard.

As noted above, the proposal maximises the opportunity for business and retail development on the ground floor, which benefits from the main road exposure. Even though the gross floor area of the ground floor tenancy is less than 500sqm, at 270sqm and on a single level, it is nonetheless a large space suited to a range of smaller bulky goods retail uses (such as tile showrooms, furniture retailers and the like) and business premises. The ground floor space has an almost unencumbered showroom frontage to the Princes Highway which wraps around the corner into Jubilee Ave. By not proposing economical marginal commercial premises on the first floor, which for the reasons described above does not enjoy any particular advantage from main road exposure, the proposal ensures that the town centres remain the focus for business and retail activity.

2. The underlying objective or purpose of the standard is not relevant to the development and therefore compliance is unnecessary;

Not applicable. The underlying objective or purpose of the standard is relevant to the development and is achieved.

3. The underlying object or purpose would be defeated or thwarted if compliance was required and therefore compliance is unreasonable;

For the reasons described in the first point above, the numerical controls work against the first objective of the standard by rendering the redevelopment of the site unviable. Furthermore, we understand from our investigations that the numerical standards were not informed by any type of economic feasibility assessment. Strict compliance with the numerical controls, therefore will thwart or defeat the first objective of the development standard, which is to provide for the viability of development in Zone B6 Enterprise Corridor. The arbitrary creation of economically marginal commercial premises on the first floor, of the proposal will also work against the second objective of the development standard, which is to ensure that the town centres remain the focus for business and retail activity.

We do not rely on this reason.

The subject sites zoning is not disputed. However the environmental character of the subject site and the Princes Highway corridor in general, is not necessarily conducive to the strict application of the development standard in question. That is much of the Princes Highway, inclusive of the subject site, is a major vehicular thoroughfare. It would not be regarded as a pedestrian friendly environment, such as most town centres would be for example. In transport corridors which are not particularly pedestrian friendly, first floor commercial space would not be regarded as a viable proposition. As such, whilst the environmental character does not call into question the zoning of the site, it renders compliance with the standard particularly difficult. For the reasons as set out above, it is considered that compliance with the standard is unreasonable and unnecessary in the circumstances of the case. Compliance in this instance would not result in a better planning outcome. It is likely in fact that compliance would render any first floor commercial floor space vacant at least for extended time periods, if not longer. This is not desirable planning outcome, particularly in light of current demand for residential floor space.”

100. Officer’s comment: In respect to Prestons CJ judgement the NSW Land and Environment Court has established the five part test (outlined above). In this case the development fails to satisfy the five part test for the following reasons;

a. As previously discussed the objectives of the standard are not considered to be satisfied.

b. The underlying objective of the standard remains relevant and therefore compliance is necessary and warranted.

c. The B6 Enterprise Corridor zone is an appropriate zoning for the site and this parcel of land has been recently rezoned and up-scaled.

Clause 4.6(3)(b) are there sufficient environmental planning grounds to justify contravening the standard

101. Having regard to Clause 4.6(3)(b) and the need to demonstrate that there are sufficient environmental planning grounds to justify contravening the development standard, the applicant has submitted the following in support:

102. Applicant’s comments: “The SEE prepared for this DA provides a holistic environmental planning assessment of the proposed development and concludes that subject to adopting a range of reasonable mitigation measures, there are sufficient environmental planning grounds to support the development. There is robust justification throughout the SEE and accompanying documentation to support the overall development and contend that the outcome is appropriate on environmental planning grounds. Some specific environmental grounds to justify the breach of the standard are summarised as follows:

· As has been discussed in detail above, achieving compliance would necessitate commercial floor space on the first floor of the proposal. The viability of first floor commercial floor space in environments which are not pedestrian friendly, and outside of recognised town centres, is questionable. Such tenancies are likely to remain vacant for extended periods. This would not be a desirable planning outcome, nor would it be an efficient use of land considering current demand for residential floor space.

· The non-compliance, which equates to additional residential floor space on above ground floors, doesn’t render the proposals built form and/or operational character inconsistent with the desired character.

The above points are environmental planning grounds that warrant the exceedance, which are not generic but rather specific to the site and circumstances of the development.”

103. Clause 4.6(4) states that:

“Development consent must not be granted for development that contravenes a development standard unless:

(a) the consent authority is satisfied that:

(i) the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and”

104. Officer’s Comment: It is considered that the Clause 4.6 Statement lodged with the application addresses all the information required pursuant to Clause 4.6 however the statement is not considered to be well founded and there are insufficient environmental planning grounds to justify contravening the standard given that, in this case, the proposal does not satisfy the objectives of Clause 6.9 in relation to minimum areas of commercial floor space and maximum areas of residential floor space. .

105. Applicant’s comment: “Clause 4.6(4)(a)(ii) states that a development consent must not be granted for development that contravenes a development standard unless the proposed development will 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. The objectives of the standard are addressed in Section 11 of the Clause 4.6 variation request and are demonstrated to be satisfied. The objectives of the zone are addressed below:

· To promote businesses along main roads and to encourage a mix of compatible uses.

The proposed development provides commercially attractive and flexible space capable of accommodating a range of retail/commercial uses compatible with the shop top housing above. The proposed commercial/retail uses at ground floor level will help to activate the streetscape along Princes Highway and Jubilee Avenue and assist in enhancing the presentation of the site. Importantly, it creates opportunities for business activity which benefits from the main road exposure

· To provide a range of employment uses (including business, office, retail and light industrial uses).

The proposed development will provide 270sqm of commercial floor space and offer employment opportunities for the local population. The proposal also has potential to attract new businesses and commercial opportunities to this part of Carlton.

· To maintain the economic strength of centres by limiting retailing activity.

The proposed development will provide commercial floor space only at ground level. As the proposals overall commercial is less than the minimum required by Clause 6.9 of the KLEP, the strength of centres is maintained by default. Whilst the proposals commercial floor space is less than the minimum required, it is nevertheless a generous quantity. Its dimensions are also practical. The tenancy is well suited to a range of commercial operators, an in particular showroom type businesses which are expected along major vehicular thoroughfares. The prosed exceedance of the FSR on part of the site does not affect consistency with this objective.

· To provide for residential use, but only as part of a mixed use development.

The proposal allows for commercial and/or retail uses on the ground floor, whilst dwellings are proposed on all above ground levels. It is therefore a mixed use development.

The objectives of the zones, as demonstrated above, as well as the objectives for the standard have been adequately satisfied. Therefore, the variation to the Development in Zone B6 standard is in the public interest. Conversely, requiring strict compliance is likely to result in first floor commercial tenancy which, given the environment, is likely to remain vacant for extended periods. Moreover, it would make redevelopment of the site unviable. This is not in the public interest.”

106. Officer’s comment: The objectives of the B6 Local Centre zone are not satisfied. The up-zoning of the site was undertaken to activate the area identified along the Princes Highway whilst also achieving a balance between commercial and residential. The proposal will not meet the intention of the zone objectives which are not satisfied by the development as a whole. The proposal fails to provide sufficient commercial floor space to enable the range of employment uses including business, office, retail and light industrial use. The proposal fails to satisfy the “public interest” test as the variation does not comply with the objectives of the development standard of Clause 6.9.

(b) the concurrence of the Director-General has been obtained.

107. Officer’s Comment: The concurrence of the Director-General is assumed and has been delegated to the determining authority which is the Georges River Local Planning Panel as the non-compliance exceeds 10%.

Whether contravention of the development standard raises any matter of significance for State or regional environmental planning (Clause 4.6(5)(a))

108. Contravention of the development standard proposed by this application does not raise any matter of significance for State or regional environmental planning.

The public benefit in maintaining the development standard (Clause 4.6(5)(b))

109. Applicants comment: Pursuant to Ex Gratia P/L v Dungog Council (NSWLEC 148), the question that needs to be answered is ‘whether the public advantages of the proposed development outweigh the public disadvantages of the proposed development.” There is no public benefit in maintaining strict compliance with the development standard given that there are no unreasonable impacts that will result from the variation to the Development in Zone B6 standard, and hence there are no public disadvantages. We therefore conclude that the benefits of the proposal outweigh any disadvantages and as such the proposal will have an overall public benefit.”

110. It is noted that in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118, Preston CJ clarified what items a Clause 4.6 does and does not need to satisfy. Importantly, there does not need to be a "better" planning outcome resulting from the non-compliance.

111. Clause 4.6 does not directly or indirectly establish a test that the non-compliant development should have a neutral or beneficial effect relative to a compliant development.

112. The second matter was in cl 4.6(3)(b), where the Commissioner applied the wrong test in considering this matter by requiring that the development result in a "better environmental planning outcome for the site" relative to a compliant development. Clause 4.6 does not directly or indirectly establish this test. The requirement in cl 4.6(3)(b) is that there are sufficient environmental planning grounds to justify contravening the development standard, not that the development that contravenes the development standard have a better environmental planning outcome than a development that complies with the development standard.

113. The proposed development fails to meet the intent and objectives of Clause 6.9 through the non-compliance with the amount of commercial and residential floor space proposed; in addition it fails to satisfy the objectives of the zone and therefore there are not sufficient environmental grounds to justify contravening the development standard.

Development Control Plans

Kogarah Development Control Plan 2013

114. The provisions of Kogarah Development Control Plan 2013 (KDCP 2013) are relevant to the proposed development. Several controls within the KDCP 2013 are inconsistent with the scale of development now permitted under the KLEP 2012 (as amended on 26 May 2017).

115. It is also noted that in the hierarchy of planning controls, Development Control Plans cannot prescribe more onerous corresponding controls than those in a Local Environmental Plan.

116. An assessment of the proposed development against the relevant controls in the KDCP 2013 is detailed in the compliance table below.

Part B General Controls
Part	Objectives/Controls	Comments	Complies
B1 - Heritage Items and Heritage Conservation Areas	The objectives of this part are to: · Ensure development protects and enhances the environmental and cultural heritage of Kogarah; · Ensure proposed development is sympathetic to heritage items and Heritage Conservation Areas; · Provide guidance on appropriate design, siting, bulk, materials, landscaping and streetscape character.	The subject site is not a heritage item and is not located in a heritage conservation area. It does not adjoin a heritage item however there is a heritage item located on the other side of Jubilee Avenue being Kogarah Park/Jubilee Oval. The proposed development will not have an adverse impact upon the heritage item.	Yes
B2 - Tree Management and Green Web	The objectives of this part include the following: · Ensure the protection of existing trees which contribute to the visual amenity and environment of the City of Kogarah; · Protect trees within and adjacent to development sites; · Maximise healthy tree canopy coverage across the City of Kogarah.	The trees are located in the adjoining site being the Carlton Public School with the main concern relating to the Broad Leaved Paperback – Tree 2 (the centrally located tree of the three trees). This tree must be protected and retained. Council’s consultant arborist has advised that the extent of the excavation and proximity of the basement (3m) to the boundary will not provide an adequate TPZ for the retention of Tree T2 (located adjacent to the ground floor loading bay. The applicant has provided an arborist report which indicates otherwise. Further information on the TPZ is required; alternatively the extent of the basement excavation will need to be reduced to the north western boundary with a setback from the boundary being in the vicinity of 5m (as advised by Council’s arborist).	No
B3 - Developments near Busy Roads and Rail Corridors	The objectives of this part are to: · Ensure an appropriate acoustic amenity can be achieved for development near transport corridors, particularly residential development and other noise sensitive land uses; · Provide additional acoustic design or mitigation measures that may be necessary; · Development fronting a busy road or a rail corridor should be designed and sited to minimise noise impacts.	An acoustic report was prepared and is deemed satisfactory. This has been discussed in greater detail above.	Yes
B4 - Parking and Traffic	The objectives of this part are to: · Minimise traffic congestion and ensure adequate traffic safety and management; · Ensure an adequate environmental quality of parking areas (including both safety and amenity); · Provide adequate car parking for building users and visitors, depending on building use and proximity to public transport.	Given this development is within an accessible area the requirements of the RMS Guide for Traffic Generating Development are triggered by SEPP 65 and the Apartment Design Guide.	Yes (see below) and is also referenced in the ADG assessment earlier in this report.
Residential Parking	The site is located within 720m of Carlton Railway Station and is located outside the strategic centre. As such the “Metropolitan Subregional Centre” rates apply. 6 x 1 bedroom units x 0.6 = 3.6 required 16 x 2 bedroom units x 0.9 = 14.4 required 1 x 3 bedroom unit x 1.4 = 1.4 required Visitors 23 units (1 per 5) = 4.6 required Total of 24 spaces required 30 spaces have been provided	The plans have been amended and there are now 41 spaces provided. Of these 41 spaces 30 have been allocated as residential car spaces including visitors’ spaces.	Yes
Car wash bay	1 bay, which can also function as a visitor space	1 car wash bay has been provided on Level 1 within a visitor space.	Yes
Bicycle parking	Residential 1 space per 3 dwellings (8 spaces) + 1 space per 10 dwellings for visitors (2 spaces) = 10 spaces required Commercial 1 space per 5 car parking spaces = 2 spaces required Total required = 12 spaces	11 bicycle parking spaces provided in the basement.	No 1 additional bicycle parking space is required. Can be conditioned to be provided if the application was to be supported.
Commercial parking	1 space per 40m² gross floor area (offices/bulky goods)	Based on commercial floor area of 270sqm – 7 spaces required. 11 spaces provided	Yes 4 additional spaces provided however the commercial space will need to be increased and this will result in additional spaces being required.
Loading requirements	Retail Floor area 15sqm to 500sqm – 1 bay required Floor area >500sqm to 1500sqm – 2 bays required Commercial Floor Area 1000sqm – 2000sqm - 1 bay required Floor area > 500sqm to 10000sqm – 2 bays required Design of loading bay Minimum bay width - 3.5m Minimum bay length – 9.5m	1 loading bay measuring 9.5m x 3.5m has been provided at ground level adjacent to the driveway.	Yes. However the loading bay is located at ground level and is a safety concern. The loading bay is located adjacent to the driveway and alongside the school. Vehicles using the loading bay cannot enter and leave the site in a forward direction therefore needing to reverse into Jubilee Avenue which is not supported.
B5 - Waste Management and Minimisation	The objectives of this part are to: · Encourage best practice in waste management that minimises waste generation, facilitates waste separation and maximises reuse and recycling; · Ensure quality design of waste management facilities that complement the building design and minimise noise, odour and visual impacts on adjacent uses and the public domain; · Ensure suitable and efficient waste storage, recycling and collection in all development.	A Waste Management Plan (WMP) was submitted with the application and referred to Council’s Waste Officer. The bin storage area is located within the Level 1 basement. There is no dedicated area adjoining the bin room or within the development that can be used for storing bulky goods.	Yes, the required number of bins has been catered for. No bulky storage area provided.
B6 - Water Management	The objectives of this part are to: · Reduce flooding and drainage impacts within and downstream of the development site; · Reduce pollutant loads exported to the waterways via the stormwater system; · Conserve water and reduce mains water consumption.	The development has been assessed as satisfactory with respect to the above flood levels for Lot 11. No other specific flood controls are applicable to this development The proposed method of stormwater management has been assessed by Councils engineer and has been found to be satisfactory subject to conditions.	Yes
B7- Environment Management	The objectives of this part are to: · Apply principles and processes that contribute to ecologically sustainable development; · Reduce the impacts of development on the environment; · Increase the resilience of development to the effects of climate change; · Ensure that greenhouse gas emissions will be reduced; · Reduce the use of potable water; · Ensure that development can adapt to climate change.	A BASIX certificate has been submitted with the application verifying that the relevant water, energy and thermal comfort targets have been met by the proposal. Should the application be approved, conditions of consent will be included to ensure the commitments required under the BASIX certificate will be satisfied by the proposed development.	Yes

Interim Policy – Georges River Development Control Plan 2020

117. Council at its Environment and Planning Committee Meeting dated 24 June 2019 resolved to adopt the Georges River Interim Policy DCP.

118. The Interim Policy is a public policy that is to be used as a guide to set a consistent approach for the assessment of residential development within the LGA. It is a supplementary document, meaning that current DCP controls will prevail if they are considered best practice. The Interim Policy has no statutory recognition in the assessment of DAs pursuant to the Environmental Planning and Assessment Act, 1979 (EP&A Act).

119. An assessment of the proposal has been carried out against the provisions of the Interim Policy as set out in the following table.

Interim Policy – Georges River DCP 2020

Standard	Proposed	Complies
*Site Frontage*
20m	28.43m to Jubilee Avenue and 29.055m to Princes Highway with splayed corner of 4.27m.	Yes
*Building Height*
The relevant LEP controls relating to building height will prevail over DCP controls that relate to height in storeys	The proposal is fully compliant with the KLEP 2012 height limit.	Yes
*Private Open Space*
The ADG requirements prevail over the DCP controls for private open space	The proposal is fully compliant with the ADG’s private open space requirements. Refer to “4E – Private Open Space and Balconies” within the ADG Compliance Table above.	Yes
*Communal Open Space*
The ADG requirements prevail over the DCP controls for COS	The proposal complies with the requirements of the ADG with respect to COS. Refer to “3D – Communal Open Space” within the ADG Compliance Table above.	Yes
*Parking*
In accordance with 'A Plan for Growing Sydney' (Department of Planning and Environment): · If located in a strategic centre (ie Kogarah CBD and Hurstville CBD) and within 800m of a Railway, the “Metropolitan Regional Centre (CBD)” rates apply. · If located within 800m of a railway and outside the strategic centres the “Metropolitan Subregional Centre” rates apply. · If located outside of 800m of a Railway, the relevant DCP applies.	The site is located 720m of Carlton Railway Station and is located outside the strategic centre. As such the “Metropolitan Subregional Centre” rates apply. 1 bed 6 x 0.6 = 3.6 required 2 bed 16 x 0.9 = 14.4 required 3 bed 1 x 1.4 = 1.4 required Visitors 23 units (1 per 5) = 4.6 required Total of 24 spaces required 30 spaces have been provided.	Yes
*Solar Access*
The ADG requirements prevail over the DCP controls for solar access	The proposal is considered to be compliant with the ADG Solar Access requirements as detailed within the ADG Compliance Table above. Refer to “4A – Solar and Daylight Access” within the ADG Compliance Table.	Yes

Developer Contributions

120. The proposed development if approved would require the payment of developer contributions under Section 7.11 of the Environmental Planning and Assessment Act 1979 as the proposal is increasing the density of the locality by the construction of 23 new apartments. If the development was to be approved a condition outlining the required contributions will be imposed.

IMPACTS

Natural Environment

121. The extent of excavation for the proposed development will adversely affect the natural environment as the proposal in its current form will affect the health of the tree located on the adjoining site at 65 Jubilee Avenue Kogarah. The extent of excavation will need to be reduced in this area and the provision of an increased setback to the basement is required to ensure the longevity, integrity and visual amenity of the existing mature trees will be able to be retained as the building footprint substantially affects the TPZ of both these trees.

Built Environment

122. The proposed development is consistent with the planning controls as it complies with the maximum height and floor space controls contained in KLEP 2012. In addition the built form is considered acceptable and appropriate for the site. The design achieves a scale, bulk and height that is not inconsistent with the desired character of the streetscape and surrounds for the new B6 Enterprise Corridor objectives and zoning.

Social Impact

123. No adverse social impacts have been identified as part of the assessment. The proposed development, in principle, will cater for a cross-section of the community and could assist with providing for additional housing in the area. The construction of this shop top housing development will not be inconsistent with the B6 zoning of the land.

Economic Impact

124. The proposal does not satisfy the objectives of the B6 zone which focus on the ability of the Enterprise Corridor zone to encourage appropriate businesses and offer a range of employment opportunities. The proposal fails to provide the minimum floor space for the commercial component and this will adversely affect the future economic viability of the zone. The overall commercial space is restricted and limited on its function and use given the lack of floor space assigned to the commercial component.

Suitability of the site

125. The site is zoned B6 – Enterprise Corridor. The proposal is a permissible form of development in this zone. The site is suitable for the construction of a shop top housing development in an area that has been “up-zoned” for this purpose. Although the site is suitable for this form of development the overall design and amenity of the development is not considered to be acceptable given the proposal fails to meet the intent and objectives of the zoning through the balance of commercial and residential floor space.

SUBMISSIONS AND THE PUBLIC INTEREST

126. The application was neighbour notified in accordance with Kogarah DCP 2013 for a period of 14 days. Fourteen (14) submissions were received from immediately adjoining property owners. The concerns raised are summarised below.

· The bulk and scale is out of scale with the existing streetscape

Comment: The bulk and scale of the proposed development has been raised as a concern. This area has been rezoned to permit a building of a height up to 21m with a floor space of 2:1. The proposed building complies with these controls. The bulk and scale of the building is consistent with the control for the B6 Enterprise Corridor zoning, and the envelope and form envisaged by the up-zoning.

· Loss of privacy and overlooking of Carlton Public School.

Comment: Concern has been raised by the Principal and parents of children who attend Carlton Public School that the proposed north western facing balconies and the roof top terrace have the potential to overlook the school. As part of any redesign of the proposal, it is recommended that these balconies be reorientated to minimise this impact. In addition, screen planting should also be provided in the deep soil zone of the site adjacent to the school to aid in softening the building and to also afford an increased level of privacy that will in time also minimise overlooking from the upper level apartments. The provision of a roof top garden has also been raised as a concern. The roof top space is centrally located with garden beds and planting located around the perimeter of the area to assist in minimising overlooking. Where communal open space cannot be provided at ground, the ADG recommends it should be provided on a podium or roof, this roof top area is consistent with these provisions. The treatment of this space has been respectful of the adjoining land use.

· Overshadowing of Carlton Public School.

Comment: The shadowing impacts generated by the building comply with the KDCP provisions and properties to the south will receive a minimum of 3 hours of solar access during midwinter to their living spaces and to 50% of their private open space. Given both Carlton Public School and the subject site have a north western orientation; there will be minimal impact upon Carlton Public School in terms of overshadowing therefore not adversely impacting the amenity of the school site.

· Traffic issues, increase congestion and conflicts generated.

Comment: Increased traffic congestion along the Princes Highway and in Jubilee Avenue are raised as concerns by residents within the immediate vicinity and school users. It is inevitable that the proposal will increase traffic volumes, in particular Jubilee Avenue, particularly during the peak hour traffic periods. However given that the proposal complies with the 2:1 floor space ratio limit that applies to the site, such traffic generation is considered reasonable. Notwithstanding that the adjacent intersection is subject to existing capacity constraints, the level of traffic generation likely to be generated by the proposal is consistent with that anticipated for the site under the planning controls.

· Car parking.

Comment: Increased competition for the already limited kerbside parking opportunities in surrounding streets is raised as a concern by residents immediately to the south of the proposed development. The proposal makes provision for an acceptable amount of on-site car parking for residents, visitors and business premises consistent with the requirements for the subject site. It is considered the development is self-sufficient with respect to carparking demand.

· Noise and dust emissions during construction

Comment: If the application was to be approved, standard conditions of consent for construction activity and hours would be imposed.

· Increased pressure on school from increased population

Comment: It cannot be determined that the development would or would not increase pressure on school from the new development as future occupants are unknown. This is not a matter for consideration under the Environmental Planning and Assessment Act.

REFERRALS

Council Referrals

Development Engineer

127. The application was referred to Council’s Development Engineers for comment, the following comments were made:

“The lot identified as 73 Jubilee Avenue Carlton (Lot 11, DP625850) is classified as flood affected in the Beverley Park Overland Flow Risk Management Study and Plan 2007.

The Flood Planning level is identified as RL 10.1m (AHD). The Probable Maximum Flood (PMF) level is identified as RL 11.66m (AHD). The lot is not identified as being within the 1 in 100 year flood extents and as such does not have a 1 in 100 year flood level. The lot identified as 71 Jubilee Avenue Carlton (Lot 10, DP625850) is not classified as flood affected.

The development has been assessed as satisfactory with respect to the above flood levels for Lot 11. No other specific flood controls are applicable to this development.”

Any future design for the site should provide a Local flood assessment that shows the basement carpark will not be affected by runoff from off the road and footway in storms up to and including the 100 year ARI event. Minimum driveway crest levels on the submitted plans will need to match requirements of the flood assessment. The assessment would also need to state requirements for the levels of any ground level landings to stairwells to the basement, and ventilation openings to the basement to prevent potential inundation in the 100 year ARI event.

128. No objection is raised by Councils Stormwater Engineer subject to conditions of consent being attached if approval is granted.

Traffic Engineer

129. The application was referred to Council’s Traffic Engineer for comment. Comments received 4 July 2019. Council’s traffic section raised a number of concerns with the scheme including;

· The aisle across the first three spaces on all basement levels are too narrow, measuring only 5.5m, this is meant to be 6.1m due to single sided aisles, 2890.1:2004 2.4.2 (d).

· Swept diagram for MRV vehicles accessing the loading and unloading areas is required.

· There was no mention of the Garbage Collection. If garbage will be collected from the development, how will garbage trucks access the bins?

· A management plan on how the Traffic System will work for the one-way ramp, addressing waiting areas and conflict of vehicles entering and leaving the site will also need to be submitted for the traffic section to review.

Amended drawings were provided which relocated the new loading bay with dimensions of 9.5m x 3.5m next to the ramp entry at ground level. This loading bay has the ability to service a MRV. The concern with this location is that the MRV would not be able to enter manoeuvre to exit the site in a forward direction. Given the busy intersection and proximity to the school, vehicular and pedestrian safety issues are raised. In addition, certification was provided by Motion Traffic Engineers confirming that the car parking area and driveway is generally compliant with AS2890 and Council’s DCP.

In an effort to review alternative loading bay locations, the proposal was referred to Councils Traffic Engineer to ascertain whether a loading bay would be considered on Jubilee Avenue, subject to Traffic Committee approval, comments were as follows:

“The traffic section would not support a loading zone in Jubilee Avenue. Jubilee Avenue is not in a business or a commercial area where the loading zone can be shared by other businesses, thus the loading zone will not be supported as it would be benefiting a private development which should be self-sufficient in providing all its development needs on site. Furthermore there is Jubilee Oval and Carlton South Public School that already put demands on on-street parking. Accordingly the traffic section cannot afford losing parking spaces for private developments.”

Environmental Health Officer

130. Council’s Environmental Health Officer has raised no objection subject to conditions of consent being attached if approval is granted.

Consultant Arborist

131. Council’s Consultant Arborist reviewed the proposal and raised concerns with the impact to the trees located within the school due to the extent of excavation for the basement adjacent to the boundary adjoining the school. It is recommended that the plans be amended by providing an increased basement setback in the vicinity of 5m from this boundary.

Building Surveyor

132. Council’s Building Surveyor has raised no objection subject to conditions of consent being attached if approval is granted.

Waste Services

133. The application was referred to Council’s Waste Manager for comment. No objection was raised in respect to the proposed waste arrangements subject to the imposition of standard conditions if approval was to be granted.

External Referrals

Sydney Airports

134. The proposed development will not penetrate prescribed airspace for Sydney Airport and does not constitute the need for a ‘controlled activity’ within the meaning of Division 4 of Part 12 of the Airports Act 1996.

Ausgrid

135. The application was referred to Ausgrid for comment on 4 December 2018 in accordance with Clause 45 of the Infrastructure SEPP. To date no response has been provided and given the timeframe concurrence can be assumed.

Roads and Maritime Services (RMS)

136. The application was referred to RMS in accordance with Clause 101 and 102 of State Environmental Planning Policy (Infrastructure) 2007. A formal response was provided and concurrence was obtained subject to the imposition of conditions if the application was to be supported.

CONCLUSION

137. The application has been assessed having regard to the Matters for Consideration under Section 4.15 of the Environmental Planning and Assessment Act 1979, the provisions of the relevant State Environmental Planning Policies, Local Environmental Plans and Development Control Plans. The non-compliance with the minimum commercial area requirements for the B6 zone, pedestrian and vehicular concerns with the loading bay location, overlooking concerns from the balconies facing the adjoining school along with the adverse impact upon the trees on the school site, the proposed development is considered to be an unacceptable planning outcome.

138. The Clause 4.6 objection in relation to development in the B6 Zone justifying the non-compliances with the maximum gross floor area for shop top housing and minimum gross floor area for other land uses is not considered to be well founded in this instance. As a result the application is recommended for refusal.

DETERMINATION AND STATEMENT OF REASONS

Statement of Reasons

139. The reasons for this recommendation are:

· The proposal exceeds the maximum shop top housing component of 65% of the total floor area. The residential component of the proposed development is 1878sqm being 87.4% of the overall gross floor area being a breach of 22.4% of the permitted floor area as referenced by clause 6.9(3) of Kogarah Local Environmental Plan 2012.

· The proposal also fails to provide a minimum of 500sqm of a land use other than shop top housing. The commercial/retail component of the proposed development is 270sqm, which is 230sqm less than the minimum required under Clause 6.9(4) of KLEP 2012.

· This part of Carlton is undergoing transition to shop top housing with new controls allowing for a greater density and scale. However, the proposal fails to respond to the desired future character for development by not providing the minimum required commercial floor space which is the main objective of the B6 – Enterprise Corridor zoning.

· The proposed building design and siting, in particular the extent of excavation associated with the basement carpark will adversely affect the TPZ of the Broad Leaved Paperback (T2) located on the adjoining site and its longevity, hydrology and integrity will be severely impacted. More than 10% of encroachment on the TPZ is anticipated which is considered to be unacceptable.

· The proposal is deficient in the amount of commercial floor space required under the provisions of Clause 6.9 of Kogarah Local Environmental Plan 2012. This would create an undesirable precedent in the area. Its approval in its current form is not in the public interest.

· The proposed north-western facing balconies have the potential to overlook the school. These balconies need to be reorientated and the use of angled screening will assist to minimise this impact. There should not be any direct overlooking into the school.

· In consideration of the aforementioned reasons, the proposed development is recommended for refusal.

Determination

140. THAT pursuant to Section 4.16(1) of the Environmental Planning and Assessment Act 1979 (as amended) the Georges River Local Planning refuse development consent to Development Application DA2018/0277 for demolition of the existing structures on site and the construction of a five (5) storey shop top housing development comprising of twenty (23) units and two (2) levels of basement car parking for forty (40) vehicles and associated site works at Lot 10 and 11 DP625850 and known as 71-73 Jubilee Avenue, Carlton, for the following reasons:

1. The proposed development fails to satisfy the provisions of Section 4.15 (1)(a)(i) of the Environmental Planning and Assessment Act 1979, in that the proposal fails to meet the controls and objectives of Clause 6.9 (3) Development in Zone B6 of the Kogarah Local Environmental Plan 2012 which restricts the amount of gross floor area for shop top housing to a maximum of 65%. The proposed development provides 87.4% of residential gross floor area being a 22.4% breach.

2. The proposed development fails to satisfy the provisions of Section 4.15 (1)(a)(i) in that the proposal fails to satisfy the control and objectives of Clause 6.9 (4) Development in Zone B6 of the Kogarah Local Environmental Plan 2012 requiring that a land use other than shop top housing be a minimum of 500sqm. The proposal development only provides for the other land use an area of 270sqm.

3. The proposed development fails to satisfy the provisions of Section 4.15 (1)(a)(iii) of the Environmental Planning and Assessment Act 1979, in that the location of the ground floor loading bay does not permit vehicles to enter, manoeuvre and exit the site in a forward direction which fails to satisfy the provisions of Part B4 of KDCP 2013.

4. The proposed development fails to satisfy the provisions of Section 4.15 (1)(a)(iii) of the Environmental Planning and Assessment Act 1979, in that the proposal does not satisfy the provisions of Part B2 of the Kogarah Development Control Plan as the proposed building design and siting, in particular the extent of excavation for the basement car park will adversely affect the Tree Protection Zone and canopy spread of the Broad Leaved Paperback and its longevity, hydrology and integrity will be severely impacted.

5. The proposed development fails to satisfy the provisions of Section 4.15(1)(a)(i) of the Environmental Planning and Assessment Act 1979, in that the proposed Clause 4.6 variations in respect to the Development in Zone B6 controls contained within Clause 6.9 of KLEP 2012 are not considered to be well founded in this case as the design of the development fails to satisfy the objectives of the planning controls therefore failing to satisfy the provisions of Clause 4.6.

6. The proposal fails to satisfy the provisions of Section 4.15 (1)(b) of the Environmental Planning and Assessment Act 1979, in that the additional residential floor space and lack of commercial floor space does not represent the desired future character for development in the street and the B6 Enterprise Corridor Zone and will adversely affect the nature of proposed development.

7. The proposed development fails to satisfy the provisions of Section 4.15(1)(e) of the Environmental Planning and Assessment Act 1979, in that the development in its current form will establish an undesirable precedent for development in that the proposed development has failed to meet the minimum commercial/retail floor space requirements for the new B6 zoning and will not be in the public interest.

8. The proposal fails to satisfy the provisions of Section 4.15 (1)(b) of the Environmental Planning and Assessment Act 1979, in that the proposed development fails to provide the minimum floor space or appropriate service areas for the non-residential component of the development, which will have an adverse impact upon the future economic viability of the zone. The scale and size of the commercial space provided is restricted and limited on its functionality and use. The proposal does not satisfy the objectives of the B6 zone which focus on the ability of the Enterprise Corridor zone to encourage appropriate businesses and offer a range of employment opportunities.

9. The proposal fails to satisfy the provisions of Section 4.15 (1)(b) of the Environmental Planning and Assessment Act 1979, in that the orientation of the north western facing balconies will have the potential to overlook the adjoining property which is considered to be inappropriate.

ATTACHMENTS

Attachment ⇩1	Site Plan - 71-73 Jubilee Ave Carlton
Attachment ⇩2	South East Elevation - 71-73 Jubilee Ave Carlton
Attachment ⇩3	North East Elevation - 71-73 Jubilee Ave Carlton
Attachment ⇩4	North West Elevation - 71-73 Jubilee Ave Carlton
Attachment ⇩5	South West Elevation - 71-73 Jubilee Ave Carlton

Georges River Council – Local Planning Panel Thursday, 12 December 2019

Page 263

REPORT TO GEORGES RIVER COUNCIL

LPP MEETING OF Thursday, 12 December 2019

LPP Report No	LPP059-19	Development Application No	DA2018/0439
Site Address & Ward Locality	89-91 Railway Parade Mortdale Mortdale Ward
Proposed Development	Demolition of the existing structures and construction of a six (6) storey shop top housing development containing a commercial/retail tenancy on the ground floor and a total of nineteen (19) apartments and thirty one (31) car parking spaces within the basement and associated site works
Owners	Younan Management Pty Ltd
Applicant	AB Works
Planner/Architect	Andrew Robinson Planning Services
Date Of Lodgement	24/10/2018
Submissions	Fourteen (14) individual submissions and one (1) submission containing twelve (12) signatures
Cost of Works	$8,140,000.00
Local Planning Panel Criteria	Shop top housing development falls within the category of development to be assessed in accordance with the provisions of SEPP 65 (Design Quality of Residential Flat Development)
List of all relevant s.4.15 matters (formerly s79C(1)(a))	State Environmental Planning Policy No.65 – Design Quality of Residential Apartment Development, State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017, State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, Greater Metropolitan Regional Environmental Plan No.2 – Georges River Catchment, State Environmental Planning Policy No.55 – Remediation of Land, State Environmental Planning Policy (Infrastructure) 2007, Draft Evironmental State Environmental Planning Policy, Draft State Environmental Planning Policy – Remediation of Land, Kogarah Local Environmental Plan 2012, Kogarah Development Control Plan 2013
List all documents submitted with this report for the Panel’s consideration	Statement of Environmental Effects and Clause 4.6 Statement Acoustic Report Preliminary Site Investigation Traffic and Parking Assessment
Report prepared by	Senior Development Assessment Planner

Recommendation

That the application be refused in accordance with the reasons stated in the report.

Summary of matters for consideration under Section 4.15

Have all recommendations in relation to relevant s4.15 matters been summarised in the Executive Summary of the assessment report?

Yes

Legislative clauses requiring consent authority satisfaction

Yes

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 - Clause 4.3 (Height of Buildings Control)

Special Infrastructure Contributions

Does the DA require Special Infrastructure Contributions conditions (under s7.24)?

Not Applicable

Conditions

Have draft conditions been provided to the applicant for comment?

The application is being recommended for refusal, the reasons will be available for review when the report is published.

Site Plan

Subject site outlined in blue

EXECUTIVE SUMMARY

Proposal

1. The development application (DA) seeks consent for the demolition of all existing structures on site and the construction of a part six (6), part seven (7) storey shop top housing development comprising of a total of nineteen (19) apartments, basement car parking for a total of thirty one (31) vehicles, one (1) ground floor retail tenancy with an area of dedicated communal open space on the roof including landscaping at the rear and associated site works. The proposal is located within an area zoned to facilitate the expansion of the Mortdale Town Centre which is located to the north west of the site adjoining the Mortdale Railway Station.

2. On 25 July 2019 the application was referred to Sydney Trains for their formal concurrence in accordance with Clause 86 (excavation in, above, below or adjacent to the rail corridor) of State Environmental Planning Policy (Infrastructure) 2007 due to the proximity of the site to the Mortdale Train Station and railway line and that the excavation extends more than 2m below the existing ground level. To date no response from Sydney Trains has been received and therefore concurrence can be assumed. The site does not directly abut the railway line and therefore it is unlikely there will be any adverse impacts from the development on the railway infrastructure.

3. The property immediately to the rear known as 1 Ellen Subway which is a triangular piece of land, received development approval for the construction of a seven (7) storey mixed use development (DA2017/0570). Refer to Figure 1 below.

Figure 1: 3D Montage of the approved development at No.1 Ellen Subway (DA2017/0570)

4. One of the key planning issues with the redevelopment of the subject site is its narrow width and generally small site area. The subject proposal was the subject of a Pre-lodgement meeting and advice (PRE2018/0032) dated 9 August 2018 which encouraged the amalgamation of the adjoining site being 93 Railway Parade. This would create a larger and more integrated development and achieve a better urban design and planning outcome.

5. The pre-lodgement advice stated;

“The subject site is relatively narrow and as indicated in the comments below, this narrow width results in compliance issues specifically in relation to side boundary setbacks and building separation. The narrow nature of the site also results in the commercial/retail shop being reduced to a relatively narrow width and the activation of the street front from this use is limited both by the allotment width and the fall of the site.

A better outcome would be possible with the amalgamation of the subject site and an adjacent neighbour. Every effort should be made (prior to finalising plans and lodging a development application) to amalgamate with adjacent site(s). Any future development application must demonstrate that an appropriate offer has been made to the adjoining neighbour as advised in a valuation report prepared by a Registered Valuer.”

6. The pre-lodgement advice concluded that “As discussed above, the proposal does not satisfy the height and FSR requirements of the Kogarah LEP. The proposal also results in significant departures from SEPP 65 to the point that the DRP has indicated that the proposal cannot be supported. It is strongly recommended that any future development application be designed so as to comply with the relevant controls and addressing the points raised above. Should the application be lodged in its current form it would not be supported.”

Figure 2: Southern elevation of the proposal as presented with the Pre-lodgement application (Pre2018/0032)

7. The design of the building and the layout has changed from the pre-lodgement form in that the main bulk has been concentrated to the front of the site whilst increased side setbacks have been provided towards the rear section of the building. The proposed front elevation as submitted with the pre-lodgement is shown in Figure 2 above and the current proposed front elevation is shown in Figure 3 below.

8. Since the lodgement of the application the ownership of the property has changed. The original owner offered the adjoining owner at No.93 Railway Parade a series of offers for his property during 2017 and 2018. Whilst the final offer was the most favourable to the neighbour who was willing at the time to accept this figure the offer was never formally taken up.

9. The new owner of the property has provided Council with evidence that a recent formal written offer was made to the neighbour however Council has confirmed with the neighbour that this written offer was not made (only provided verbally). An independent valuation of the property has not been prepared to support the offer that has been made and therefore not enough work/effort has occurred to secure this property.

10. This new business precinct is bounded by Railway Parade, Ellen Subway and Colebourne Avenue and comprises of a total of eight (8) low scale residential properties with two existing commercial properties from 85-105 Railway Parade. The northern end of Colebourne Avenue is a cul-de-sac and includes a pedestrian accessway providing a direct link through to Mortdale Railway Station. This small precinct was earmarked in New City Plan amendment, to the Kogarah Local Environmental Plan to be rezoned from the R3 Medium Density Residential zone to the B2 Local Centre zone establishing a new building height of 21m and FSR of 2.5:1 for these sites. The intention of the uplift is to expand the Mortdale Town Centre due to the accessibility of this locality and this precincts proximity to the station is a key driver to promote higher density development in this area.

11. The objectives of the B2 Local Centre zone include “to provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area and to encourage employment opportunities in accessible locations and to maximise public transport patronage and encourage walking and cycling.” This zone is very much focused on promoting commercial, retail and employment related activities in this accessible environment. The intention and purpose of the zone is very much about creating a business area and expanding the Town Centre. The proposed development is not considered to promote the intentions and purpose of the zone and the commitment to providing commercial/retail land uses is considered to be insufficient and inadequate.

12. Many of the problems of the development are a result of the narrow width of the site which creates inadequate separation distances, a narrow single lane driveway access point which will create potential vehicular queuing and vehicle conflicts within Railway Parade and within the development itself, and the lack of a loading dock to support the commercial use due to inadequate circulation space.

13. More broadly, it is considered that approval of the proposal would further adversely impact the walkability and viability of the precinct for business uses as it would establish a precedent that might guide the development of the remaining sites in the precinct in isolation. As the other sites within the precinct are also narrow this would also result in an inadequate amount of appropriately dimensioned floor space dedicated for employment generating land uses within the town centre.

Figure 3: 3D Photomontage of the front elevation of the proposed development

Site and Locality

14. This application applies to land known as 89-91 Railway Parade, Mortdale. 89 Railway Parade has a legal description of Lot 1 DP 964242 and 91 Railway Parade is legally identified as Lot 2 DP 964242. The site currently contains a set of single and part two storey semi-detached dwelling houses with a single storey detached secondary dwelling located at the rear of 89 Railway Parade.

15. The sites have a combined frontage width of 16.155m to Railway Parade and a depth of 44.195m. The total site area is 713.9sqm. The site falls from the rear (north west) to the front (south east) by some 1.1m.

16. The site is located on the south eastern side of the rail corridor removed by just one property at the rear (1A Ellen Subway). The site is located within a Local Centre zone within close proximity (walking distance) to the Mortdale Railway Station and the Mortdale Town Centre.

17. The precinct is bounded by Railway Parade, Ellen Subway and Colebourne Avenue which is presently undergoing transition from low density housing to shop top housing developments. Recent approvals in the precinct include DA2017/0570 at 1 Ellen Subway, and DA2017/0398 for 85-87 Railway Parade which establish a precedent for future developments. Notably both these developments are located on much larger allotments exceeding 1,000sqm with both developments having frontages exceeding 30m to the main street frontage (Ellen Subway and Railway Parade). This larger frontage and site area creates a larger and more integrated mixed use development with larger functional commercial/retail spaces and more formal entries and wider driveway access points.

Figure 4: 3D Montage of the approved development at 85-87 Railway Parade (DA2017/0398)

Zoning and Permissibility

18. The subject site is zoned B2 Local Centre under the provisions of the Kogarah Local Environmental Plan 2012 (KLEP2012). The proposal is a mixed use development and defined as a shop top housing development which is permissible with consent in the zone. Notwithstanding the permissibility of the proposal the development is not considered to be consistent with the objectives of the zone which are;

· to provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area,

· to encourage employment opportunities in accessible locations and

· to maximise public transport patronage and encourage walking and cycling.

19. The primary emphasis of the zone objectives are to promote and encourage business and employment generating activities. The proposal has been designed so that employment generating uses are secondary and minimal in size when considering the scale and form of the development. The residential use is the primary land use with the retail tenancy being very small in size, secondary in nature, which is not the intention or purpose of the zone.

Submissions

20. The DA was notified to adjoining properties in accordance with the Kogarah Development Control Plan 2013 (DCP2013) for a statutory notification period of 14 days. A total of fourteen (14) individual submissions were received and one (1) submission containing twelve (12) signatures with the following concerns being raised;

· Inappropriate bulk

· Adverse Traffic impacts being generated

· Lack of a 3m side setback to 93 Railway Parade and the proposed nil setback is unacceptable.

· Adverse overshadowing impacts

· Lack of landscaping

· The site frontage is too narrow and the site does not satisfy the minimum site area requirement of 1,000sqm.

· Inadequate provision of car parking. Twenty three (23) car parking spaces were provided but twenty nine (29) spaces should be provided.

· Adverse impact on the Heritage Item (Railway Bridge across Ellen Street).

· Exceeds the height limit.

· Out of scale and character with adjoining properties.

21. These issues are discussed in greater detail in the body of this report and in the section that considers submissions.

Reason for Referral to the Local Planning Panel

22. This application is referred to the Georges River Local Planning Panel for consideration, as the proposal relates to a Residential Flat Building in which the provisions of State Environmental Planning Policy – Design Quality of Residential Flat Development is applicable.

Planning and Design Issues

23. The application exceeds the overall height control of 21m. A Clause 4.6 Statement has been submitted seeking a variation to the statutory height control (Clause 4.3) of Kogarah Local Environmental Plan 2012 (KLEP). The Statement is comprehensive and generally justifies the non-compliance. The Clause 4.6 Statement is considered to be well founded given that the non-compliance amounts to 1.36m (6% exceedance) which only affects the lift overrun. The development achieves a maximum height of 22.35m. The lift overrun is the only structure that exceeds the height control whilst the majority of the building and associated parapet and roof features are located at or below 21m. This issue is discussed in greater detail in the body of this report.

24. The problems with this proposal stem from the built form outcome and proposed design which is inconsistent with the desired future character for development in this street and the purpose of the B2 Local Centre zone. The shop top housing developments approved at 1 Ellen Subway and 85-87 Railway Parade have established a preferred built form precedent in the area for future development in particular the later which immediately adjoins the site. The proposed development does not fit or sit comfortably in the streetscape when considering the built form and siting of the building at 85-87 Railway Parade (currently under construction) (refer to Figure 3). This building has its ground floor commercial/retail areas sited to the street boundary however the upper levels are setback 3m from the street and there is a 3m side setback along the southern side as the development abuts the semi-detached cottages (subject site). The proposed building has been designed with the front portion having 3m front setback from the street and given this design intent it will sit forward of 85-87 Railway parade which is not a desirable built form outcome and will read as dominant.

Conclusion

25. The application has been assessed having regard to the Matters for Consideration under Section 4.15 of the Environmental Planning and Assessment Act 1979, the provisions of the relevant State Environmental Planning Policies, Local Environmental Plans and Development Control Plans. The proposed built form and its non-compliance with a series of SEPP 65 (ADG) controls and non-compliance with KDCP setback provisions is therefore not considered to achieve the desired planning, streetscape and urban design outcomes for this precinct. The narrow driveway access and its associated width is also problematic, the retail tenancy is considered to be too small and there is no loading dock or provision for commercial waste to be catered for within the development. As a result the application is recommended for refusal.

Report in Full

DESCRIPTION OF THE PROPOSAL

26. The DA seeks consent for the demolition of all structures on site and the construction of a part six (6) storey, part seven (7) storey shop top housing development comprising of nineteen (19) apartments, one (1) ground floor retail tenancy and basement car parking for thirty one (31) vehicles and associated landscaping at the rear and a communal area of open space located on the roof level.

27. Further details of the proposal are as follows;

Basement Level 2 Plan

- Fourteen (14) resident car parking spaces including two (2) accessible spaces

- Twelve (12) independent storage spaces

- Five (5) bicycle parking spaces

- Lift lobby and staircase

Basement Level 1 Plan

- Nine (9) resident car parking spaces

- One (1) Retail space

- One (1) visitor space

- Three (3) motorbike parking spaces

- Five (5) bicycle parking spaces

- Seven (7) independent storage spaces

Ground Floor Plan

- Driveway entry along the south-eastern side of the site

- One (1) retail tenancy with a total floor area of 97sqm

- Main entry lobby to the lift

- Ancillary services (service room and garbage/waste room)

- Three (3) car parking spaces for the retail tenancy

- Three (3) visitor spaces with one space designated as an “accessible” space

Levels 1 Plan

- Central lobby with access to two (2) areas of communal open space

- 2 x two (2) bedroom apartments

- 2 x one (1) bedroom apartments

- Landscaped area at the rear

Level 2 and 3

- Central lobby area

- 2 x two (2) bedroom apartments

- 1 x one (1) bedroom apartment

- 1 x three (3) bedroom apartment

Level 4 and 5

- Central lobby area

- 3 x two (2) bedroom apartments

Level 6

- Central lobby area

- 1 x two (2) bedroom apartment located at the rear

- Access to a communal area of open space located towards the front of the building.

- Accessible toilet and communal room adjoining the rooftop area of open space.

28. The proposed retail component comprises of 97sqm which equates to 6% of the total Gross Floor Area.

DESCRIPTION OF THE SITE AND LOCALITY

29. The subject site comprises of two (2) allotments with the following legal descriptions;

· Lot 1 DP 964242 (89 Railway Parade)

· Lot 2 DP 964242 (91 Railway Parade)

The photos below show the existing properties on site and the streetscape context.

Photo 1: Existing front view of the subject site, 89-91 Railway Parade, Mortdale

Photo 2: Approved shop-top housing development to the west at 85-87 Railway Parade under construction

Photo 3: Immediately Adjoining development to the west, 93, 95 and 97 Railway Parade

Photo 4: Development to the south residential flat building development, 124 Railway Parade

Photo 5: Shop top housing development located to the south east of the subject site

Photo 6: New dual occupancy development under construction across the road

30. The subject site is located on the northern side of Railway Parade and comprises of the two (2) irregular allotments. Combined the site has a frontage of 16.155m to Railway Parade and width of 44.195m. In a consolidated form the site is regular in shape and has a combined site area of 713.9sqm.

31. The site falls from the north western side (rear) by some 1.1m to the front Railway Parade frontage. There is also a similar cross fall of over 1m at the front from the southern corner to the eastern corner.

32. The site comprises of two separate semi-detached dwelling houses. 89 Railway Parade is a single storey with a two storey section which includes a garage at ground floor level. At the rear of this property is a detached structure adjoining the boundary which is noted as a “granny flat” on the survey plan. The rear yard includes three (3) palm trees and several bushes and succulents. 91 Railway Parade is a narrow single storey semi-detached cottage with a pergola structure at the rear and metal shed.

33. Immediately to the west is a single storey detached dwelling house with an attached garage structure at the front, 93 Railway Parade. Immediately to the rear is 1 Ellen Subway which has been given approval (21 February 2019) for the construction of a seven (7) storey shop top housing development (DA2017/0570) however the construction of this building (refer to Figure 5 below) has not commenced and currently on site exist two (2) detached dwelling houses and a series of ancillary outbuildings. Immediately to the east is 85-87 Railway Parade which has been given approval for the construction of a six (6) storey shop top housing development and this building is currently under construction.

34. The site is located within a small precinct comprising of lower scale dwelling houses and some larger medium density developments. Across the road to the south is a small neighbourhood shopping precinct within a streetscape comprising predominantly of single and two storey dwelling houses. The retail uses are “existing uses”. The precinct is going through a process of transition to accommodate larger scaled mixed use developments that are an extension of the Mortdale Town Centre.

Figure 5: Front elevation (3D montage) of the approved development at 1 Ellen Subway (DA2017/0570)

35. The site is conveniently located and has been rezoned to form part of the Mortdale Town Centre, and is within a very accessible area close to the Mortdale Railway Station and other services and amenities such as Renown Reserve and Mortdale Public School.

State Environmental Planning Policies

36. Compliance with the relevant state environmental planning policies is summarised in the table, and discussed in more detail below.

State Environmental Planning Policy	Complies
Greater Metropolitan Regional Environmental Plan No 2 – Georges River Catchment	Yes
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004	Yes
State Environmental Planning Policy No 55 - Remediation of Land	Yes
State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017	Yes
State Environmental Planning Policy (Infrastructure) 2007	Yes
State Environmental Planning Policy No 65 — Design Quality of Residential Apartment Development	Partial non-compliance with some design standards

Greater Metropolitan Regional Environmental Plan No 2 – Georges River Catchment

37. The main aims and objectives of this plan are (not limited to);

38. The proposed system and method of stormwater disposal relies on a series of pits and an OSD (onsite detention tank) located within the central area of communal open space to store additional stormwater and release it via gravity to the street stormwater system.

39. The application has been referred to Council’s Engineering Section for comment. No objection was raised in respect to the proposed design and no additional requirements were imposed other than standard conditions that will ensure the system operates accordingly. The stormwater arrangement is generally consistent and in accordance with Council’s Water Management Policy and satisfied the relevant provisions of the Deemed State Environmental Planning Policy – Georges River Catchment.

40. The proposal is not considered to have an adverse impact on the waterway and the Georges River catchment. The proposal aims to protect the existing water quality and use and functionality of the wider catchment.

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

41. A BASIX Certificate has been issued for the proposed development. The BASIX Certificate No. 963669M is dated 16 October 2018 and the proposal meets the minimum provisions and requirements of BASIX in terms of water, thermal comfort and Energy efficiency.

State Environmental Planning Policy No 55 - Remediation of Land

42. SEPP 55 aims to promote the remediation of contaminated land in order to reduce the risk of harm to human health or any other aspect of the environment.

43. Clause 7 requires contamination and remediation to be considered in determining a development application. The consent authority must not consent to the carrying out of development on land unless it has considered whether or not the land is contaminated.

44. A Preliminary Site Investigation was prepared by EI Australia, dated 24 September 2018. As part of the investigation a conceptual site model (CSM) was derived for the site which identified potential contaminating sources that may have occurred and evaluated the likelihood for relevant exposure pathways to be complete. A qualitative risk assessment was also conducted to consider future risks. The report states that “EI considers there is low potential for contamination to be present on-site given the following reasons;

o The quality of the site structures:

o Impacts from the importation of fill soils of unknown quality and origin;

o Uncontrolled demolition and weathering of historic site structures;

o Spills and leaks from parked vehicles onsite; and

o Potential residues from pesticide use.”

45. In conclusion and “based on the findings of this report and with consideration of the Statement of Limitations (Section 7), EI concludes that the site is considered to be suitable for the proposed development, subject to the implementation of the recommendations provided in Section 6. EI provide the following recommendations:

o Prior to site demolition, a Hazardous Materials Survey (HAZMAT) is recommended to be conducted by suitably qualified and experienced consultant prior to any demolition works, to identify any hazardous materials that may be present within the building structure. All identified hazardous materials must be appropriately managed and to maintain work health and safety during site construction works;

o Prior to bulk excavation all soils (fill and natural) and bedrock requiring excavation should be assessed for waste classification and disposal purposes according to NSW EPA (2014) Waste Classification Guidelines;

o Any material being imported to the site (i.e. for landscaping purposes) should be assessed for potential contamination in accordance with NSW EPA guidelines as being suitable for the intended use or be classified as WENM”

46. If approval was to be granted these would be included as conditions.

State Environmental Planning Policy (Infrastructure) 2007

47. The aim of the Policy is to facilitate the effective delivery of infrastructure across the State. The Policy also examines and ensures that the acoustic performance of buildings adjoining the rail corridor or busy arterial roads is acceptable and internal amenity within apartments is reasonable given the impacts of adjoining infrastructure.

48. Clause 85 (Development adjoining a rail corridor) and Clause 87 (Impact of rail noise or vibration on non-rail development) of the SEPP are relevant and state that;

“If the development is for the purposes of residential accommodation, the consent authority must not grant consent to the development unless it is satisfied that appropriate measures will be taken to ensure that the following LAeq levels are not exceeded:

(a) in any bedroom in the residential accommodation—35 dB(A) at any time between 10.00 pm and 7.00 am,

(b) anywhere else in the residential accommodation (other than a garage, kitchen, bathroom or hallway)—40 dB(A) at any time.”

49. The property does not immediately adjoin the rail corridor so technically Clause 85 is not relevant as it is removed from the rail line by one property (1 Ellen Subway). An acoustic assessment was still prepared and considered rail traffic noise, mechanical plant noise and evaluated acoustic privacy between units. This report was prepared by Koikas Acoustics and dated 10 October 2018.

Figure 6: Noise monitoring locations (courtesy Acoustic assessment by Koikas Acoustics, 2018)

50. In respect to traffic noise impacts the assessment considers the measures required to satisfy the provisions within the Development Near Rail Corridors and Busy Roads – Interim Guidelines 2008. These standards are aligned with the noise requirements stipulated in Clause 87 of the Infrastructure SEPP. The standard provisions state that if internal noise levels exceed the noise requirements by more than 10db with windows open these spaces need to be mechanically ventilated which will allow noise levels to be achieved with windows closed. The assessment was also conducted against the EPA’s Noise Policy for Industry (NPI) Guidelines. The assessment included the installation of unattended noise loggers across the site (refer to Figure 5 for the location of the loggers). The assessment concluded that;

1. Traffic noise levels to indoor areas of the proposed development can be satisfactorily reduced through the use of common building materials. This may be through solid masonry external walls or acoustically design lightweight walls, concrete roof slabs and glazing of suitable type, thickness and mounting/sealing.

2. Mechanical plant and building use noise levels have not been calculated. A detailed mechanical and building use noise impact report should be prepared prior to construction and when detailed plant specifications and locations can be provided for the development. Generally there is sufficient scope within most residential unit developments to limit the level of noise from mechanical plant and equipment through strategic placement of condenser units, selection of low noise level equipment, and acoustic treatments such as silencers/duct linings.

3. Inter-tenancy noise insulation requirements of the BCA can be achieved through the use of suitable building materials and partition system details as advised. For the impact isolation performance of floors it is recommended that on-site verification of the acoustic performance is conducted on a sample of the proposed prior to installation throughout the development.

51. A series of construction measures are proposed to improve the acoustic performance of the building. If approval was granted it would be conditioned so that the recommendations of the acoustic report are integrated into the design of the building.

52. Given that the development involves excavation for the basement car park of greater than 2m in depth and with the site boundary within 25m of the rail corridor, the development is subject to the provisions of Clause 86 (Excavation in, above or adjacent to rail corridors) of the Infrastructure SEPP. The application was referred to Sydney Trains for their formal concurrence.

53. To date no response from Sydney Trains has been received and as such their concurrence can be assumed (if a response has not been provided in 21 days) in accordance with subclause 86(5) of the Infrastructure SEPP.

Draft Remediation of Land SEPP

54. The Department of Planning and Environment has announced a Draft Remediation of Land SEPP, which will repeal and replace the current State Environmental Planning Policy No 55—Remediation of Land.

55. The main changes proposed to this SEPP include the expansion of categories of remediation work which requires development consent, a greater involvement of principal certifying authorities particularly in relation to remediation works that can be carried out without development consent, more comprehensive guidelines for Councils and certifiers and the clarification of the contamination information to be included on Section 149 Planning Certificates.

56. Whilst the proposed SEPP will retain the key operational framework of SEPP 55, it will adopt a more modern approach to the management of contaminated land. The Draft SEPP will not alter or affect the findings in respect to contamination at the Site.

State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017

57. The Vegetation SEPP regulates clearing of native vegetation on urban land and land zoned for environmental conservation/management that does not require development consent.

58. The Vegetation SEPP applies to clearing of:

(b) Vegetation below the BOS threshold where a proponent will require a permit from Council if that vegetation is identified in the council’s development control plan (DCP).

59. The Vegetation SEPP repeals clause 5.9 and 5.9AA of the Standard Instrument - Principal Local Environmental Plan with regulation of the clearing of vegetation (including native vegetation) below the BOS threshold through any applicable DCP.

60. The proposed development involves the removal of three (3) palm trees located at the rear of No.89 Railway Parade and associated shrubs and lower level plantings. The proposed trees to be removed are not considered to be significant plant or tree species. Council’s Landscape Officer has reviewed the application and has given approval for their removal subject to the implementation of standard conditions. The Landscape Plan shows two (2) larger trees to be planted within the deep soil area at the rear, however these are only Native Frangipanis which are considered to be small to medium plants and this will not achieve the screening that would be appropriate given there is only a 3m wide area of deep soil. The rear ground floor terraces are substantial in size and elevated and located only 3m from the rear boundary. The proposed landscaping is unlikely to assist in screening the building and areas such as the terraces which will be utilised for outdoor entertaining purposes.

61. If approval was to be granted then it would be proposed that the Landscape Plan be amended to include two (2) large scale, mature trees that reach a minimum height of 12m at the rear and installed with minimum pot sizes of 100L.

62. The Landscape Plan also highlights two areas of communal open space which are centrally located on the first floor level with access for all future occupants from the main lobby area. The Landscape Plan doesn’t show the location of the OSD which will affect the design and functionality of the space adjacent to Unit 1.02. The presence of the OSD area will adversely affect this space and will not enable this space to accommodate the proposed planting and greenery annotated on the Landscape Plan. This space is small but its functionality and useability will be severely compromised by the location of the OSD tank.

Draft Environment SEPP

63. The Draft Environment SEPP was exhibited from 31 October 2017 to 31 January 2018. This consolidated SEPP proposes to simplify the planning rules for a number of water catchments, waterways, urban bushland, and Willandra Lakes World Heritage Property.

64. Changes proposed include consolidating the following seven existing SEPPs:

· State Environmental Planning Policy No 19 – Bushland in Urban Areas

· State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011

· State Environmental Planning Policy No 50 – Canal Estate Development

· Greater Metropolitan Regional Environmental Plan No. 2 – Georges River Catchment

· Sydney Regional Environmental Plan No 20 – Hawkesbury-Nepean River (No 2-1997)

· Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005

· Willandra Lakes Regional Environmental Plan No 1 – World Heritage Property.

65. The proposal is consistent with the provisions of this Draft Instrument.

State Environmental Planning Policy No 65 — Design Quality of Residential Apartment Development

66. State Environmental Planning Policy No 65 – Design Quality of Residential Flat Buildings (SEPP 65) was gazetted on 26 July 2002 and applies to the assessment of DAs for residential flat developments of three or more storeys in height and containing at least four dwellings. Amendment 3 to SEPP 65 commenced on 17 July 2015 and implemented various changes including the introduction of the Apartment Design Guide (ADG) to replace the Residential Flat Design Code. Given the nature of the development proposed, SEPP 65 applies.

67. Clause 28(2) of SEPP65 requires that the consent authority take into consideration the following as part of the determination of DAs to which SEPP 65 applies:

a) the advice (if any) obtained from the design review panel, and

b) the design quality of the development when evaluated in accordance with the design quality principles, and

c) the Apartment Design Guide.

68. The pre-lodgement application (Pre2017/0032) was referred to the Design Review Panel (DRP) on 5 July 2018. The design DRP did not support the pre-lodgement scheme and in summary the following issues were raised;

· Overall built form and the nil side setbacks provide inadequate building separation distances.

· Central area of open space at the ground floor will be compromised by future development on adjoining sites and the quality of these spaces should be improved.

· The panel formed the view that the width and orientation of the site prevents a satisfactory RFB.

69. The proposed design of the building was amended in an attempt to address the Panels concerns and was re-referred to the DRP on 11 April 2019 after the Development Application was lodged. The Panel considered the development against each of the nine (9) Design Quality Principles (refer to Table 1) and also considered the provisions of the Apartment Design Guide (ADG) which are summarised and addressed in Table 2 below.

70. In addition to satisfying the nine (9) design principles, the proposal fails to satisfy several Design Principles of the Apartment Design Guidelines which is predominantly due to the narrow site width. The Tables below provide a comprehensive assessment against the principles, objectives and controls of SEPP 65 and the ADG. In Table 2 below the comment in “italics” reflects the DRP comments made when considering the pre-lodgement scheme and the comments in “bold” reflect the DA design DRP comments.

Table 1: Application of SEPP 65

Clause	Standard	Proposal	Complies
3 - Definitions	Complies with definition of “Residential Apartment Development” (RAD)	Complies with the definition. Section 4 (1) (Application of Policy) of the SEPP 65 states that the policy “applies to development for the purpose of a residential flat building, shop top housing or mixed use development with a residential accommodation component if: (a) the development consists of any of the following: (i) the erection of a new building, (ii) the substantial redevelopment or the substantial refurbishment of an existing building, (iii) the conversion of an existing building, and (b) the building concerned is at least 3 or more storeys (not including levels below ground level (existing) or levels that are less than 1.2 metres above ground level (existing) that provide for car parking), and (c) the building concerned contains at least 4 or more dwellings.”	Yes – the proposed the shop top housing development is a mixed use development which satisfies the definition of SEPP 65.
4 - Application of Policy	Development involves the erection of a new RFB, substantial redevelopment or refurbishment of a RFB or conversion of an existing building into a RFB. The definition of an RFB in the SEPP includes mixed use developments.	Erection of an RFB or mixed use development (shop top housing) which satisfies the SEPP’s definition of the proposed land use. Refer to definition and explanation above in relation to the applicability of the Policy.	Yes
50 – Development Applications	Design verification statement provided by qualified designer Registered Architect Name and Registration No.	Design Verification Statement provided by Registered Architect: Jim Apostolou (Registration No.7490)	Yes

Table 2: Part 2 Design Quality Principles under the SEPP

SEPP 65 – Design Quality of Residential Flat Buildings

DRP Comment

Council comment

Context and Neighbouring

Character

Consideration of local context is important for all sites, including sites in established areas, those undergoing change or identified for change.

Pre-DA DRP comments

The site is in a B2 Local Centre zone which is currently undergoing transition with applications under consideration to the north east and the north west on larger sites. The subject site is 16.155m wide and it is deep. This imposes severe constraints for site planning and planning of the units.

The site is steeply graded with a 2m fall from the west to the east and some existing palm trees are proposed to be removed.

The Panel has formed the view that the width and orientation of the site prevents a satisfactory residential flat development. However the applicant advised that considerable effort had been made to acquire the adjacent site at 93 Railway Parade without success. Some of the Panel’s comments are critical of the proposal but take into account the efforts the applicant has made to acquire a bigger site to achieve a better development.

DA DRP Comments

The applicant noted again that efforts to acquire the adjacent site have been unsuccessful.

The key planning concern is the very narrow site width and the small site area which will establish an undesirable urban design and streetscape precedent in this commercial precinct.

This issue has been raised with the Applicant since they presented the proposal at a pre-lodgement scheme to Council and the evidence provided to Council regarding the potential purchase of No.93 Railway Parade does not seem to present serious offers conducted in a formal way and therefore it is unclear whether the adjoining owner is or is not interested in the offers made.

Built Form and Scale

Good design achieves a scale, bulk and height appropriate to the existing or desired future character of the street and surrounding buildings.

Appropriate built form defines the public domain, contributes to the character of streetscapes and parks, including their views and vistas, and provides internal amenity and outlook.

Pre-DA DRP comments

The development is set on the side boundaries which, given the width of the site and the commercial nature of ground floor uses at the front of the building, is understandable. However the zero side setbacks at the rear does constrain what might happen on adjacent sites in this area. It is noted that the design does provide side setbacks at the front of the building for Levels 3 and above however this is not reflected in the rear wing of the building.

It is likely if this application proceeds that development on the adjoining site, at least upon 93 Railway Parade, will elect to build to the boundary also, inhibiting building separation and amenity. Furthermore in these circumstances the quality of the two (2) open spaces at Level 1 will be highly prejudiced. These spaces will receive no sunlight even in the current proposal.

DA DRP Comments

Changes have been made to the building footprint. These include retaining the zero side setbacks for the front portion of the building and providing side setbacks to the rear of the building. Specifically this is 3m setback for ground level to Level 3 on the north eastern side and 4.5m above. On the south eastern side zero setbacks to Level 3, with 4.5m setback for levels above. This has improved the solar access to the Level 1 open spaces and is supported subject to one (1) further amendment which is reduction in width of the Unit 3.03 to achieve 4.5m setback. This would then allow acceptable level of daylight to the central courtyard.

The Panel felt that the design changes have improved the overall amenity and functionality of the building and the area of open space at Level 1, the broader implications of this development scheme on the character of the locality and immediate streetscape is of concern due to the narrow site width.

Density

Good design achieves a high level of amenity for residents and each apartment, resulting in a density appropriate to the site and its context.

Pre-DA DRP Comments

Complies

DA DRP Comments

Still compliant.

The GFA complies with Council’s FSR control and the number and mix of units is considered satisfactory.

Sustainability

Good design combines positive environmental, social and economic outcomes.

Pre- DA DRP Comments

Not discussed at this stage of the application.

DA DRP Comments

Sustainability measures should be provided such as solar panels and rainwater recycling, etc.

More environmentally sustainable design measures could be implemented such as a rainwater tank and solar panels. The proposal is however BASIX compliant.

Landscape

Pre-DA DRP Comments

As noted under ‘Built Form’ the Panel is very concerned about the amenity of the landscape spaces proposed in the middle of the site. These would be very dark and potentially, if used, could present noise issues for adjacent units. It is recommended, if this building resolution is to be pursued, that these be predominately planted spaces for overlook.

The Panel suggested that the north eastern space would have more utility as private open space for Unit 104 due to its inaccessibility for other occupants.

The roof top communal open space is supported. Minor changes are recommended:

· Extend planter to the front south eastern edge

· Provide a WC nearby

DA DRP Comments

The rear deep soil zone is appropriate and it is recommended that taller trees, greater than 10m height at maturity, be provided (rather than the native frangipani). Trees should be repositioned to minimise impact on adjacent property.

The landscape design of the communal rooftop space is very good and would provide a high quality area for residents.

The amount of communal open space has been increased due to the inclusion of a new roof top area of open space however there is limited deep soil area and this is a product of the deficient site area of the allotment.

The Landscape Plan does not include the location of the OSD tank which is to be located within the central area of communal open space on level 1, which will alter the functionality and useability of this space. The Landscape Plan as submitted therefore fails to reflect some of the technical elements of the scheme which are required to be catered for. If approval is to be granted the Landscape Plan would need to be updated to reflect this and also a better treatment of the rear deep soil area is recommended (i.e. the provision of larger trees to assist in screening the building).

Amenity

Good design positively influences internal and external amenity for residents and neighbours. Achieving good amenity contributes to positive living environments and resident well-being.

Pre-DA DRP Comments

The current configuration of the long corridor from the street to the lift lobby would produce an extremely unwelcoming experience. The Panel suggests that the corridor be widened to take the section of commercial space where a curved wall is shown. Chairs and a small table can be provided as a communal facility and that the internal environment should be enhanced through the lighting design and other innovative features.

DA DRP Comments

This has been addressed but not to an adequate degree. See below.

Pre-DA DRP Comments

Thought needs to be given to the access to the commercial area. The entrance door may need to be recessed to accommodate ramping for disabled access. There would be benefit to have the door and recess on the south eastern corner of the commercial space to widen the entry and to place the letterboxes on the other wall.

DA DRP Comments

Addressed.

Pre-DA DRP Comments

During the discussion it was agreed that the area marked as study in Units 102 and 202 would better serve as a storage cupboard in association with the laundry.

DA DRP Comments

Addressed.

The following issues should be addressed:

· The width of the main entrance from Railway Parade should be increased and the entrance doors relocated close to the street frontage.

The communal room should be re-planned by relocating the toilet and allowing for solar access allowing for good sunlight into the communal room.

The amenity and functionality of the ground floor spaces, lobby and commercial/retail tenancy have been compromised due to the sites narrow width. The single, narrow driveway width has been noted as an issue and will potentially create queuing on the street for vehicles entering the site and there could be conflicts within the development with cars entering and exiting the site. There is no waiting bay to assist in resolving this issue.

The DRP has concern regarding the narrow and long main lobby entry. It is requested by the Panel to “increase the width of the main entrance from Railway Parade should be increased and the entrance doors relocated close to the street frontage.” This will reduce the size of the commercial unit which is already considered to be substandard given the small scale nature of this land use in the B2 zone.

The streetscape impact of these issues will create a poor design and planning outcome lacking appropriate street address and adversely impact on the creation of a walkable commercial streetscape.

The internal amenity of the upper level apartments is considered satisfactory however the side setbacks are inconsistent with the adjoining development and the physical separation distances fail to comply with the ADG and the KDCP which will adversely affect the amenity of the adjoining residential dwelling house at 93 Railway Parade.

Safety

Good design optimises safety and security within the development and the public domain. It provides for quality public and private spaces that are clearly defined and fit for the intended purpose.

Opportunities to maximise passive surveillance of public and communal areas promote safety.

Pre-DA DRP Comments

Acceptable

DA DRP Comments

Acceptable subject to relocating front entrance doors as recommended above.

Safety can be increased by improving security and access and integrating security cameras and formalising the main entrance.

This issue can be improved through conditions of consent if approval was recommended.

Housing Diversity and Social Interaction

Good design achieves a mix of apartment sizes, providing housing choice for different demographics, living needs and household budgets.

Well-designed apartment developments respond to social context by providing housing and facilities to suit the existing and future social mix.

Good design involves practical and flexible features, including different types of communal spaces for a broad range of people and providing opportunities for social interaction among residents.

Pre- DA DRP Comments

Acceptable unit mix. When adaptable units are being considered it would be desirable to have a mix that provides choice.

DA DRP Comments

Remains acceptable.

Considered to be satisfactory

Aesthetics

The visual appearance of a well designed apartment development responds to the existing or future local context, particularly desirable elements and repetitions of the streetscape.

Pre-DA DRP Comments

No comment at this stage.

DA DRP Comments

The design is attractively resolved on this constrained site, and the architectural character is appropriate for its context.

The Panel have commented on the design of the building. It is considered that the overall built form and design is contemporary and is well designed.

The overall concern with the built form is it does not respect the architectural treatment or articulation of the building given its bulk, scale and siting which is inconsistent with the character of recently approved shop top housing developments. The redevelopment of 85-87 Railway Parade has established a precedent and this development provides a built form with good physical separation and a double frontage width along Railway Parade and Ellen Subway providing for generous commercial areas on the ground floor. The building is situated on the western boundary and the height, bulk and scale of this building and the lack of separation and setbacks at the rear to 93 Railway Parade will detrimentally affect the amenity of this property.

71. Despite the DRP comments providing general positive direction and feedback, the Panel at the meeting did raise concern with the design of the ground floor area and treatment of the lobby space.

72. Having regard to the above, the Panel considers that the proposal generally satisfies the Design Principles of the ADG and the Panel supported the scheme subject to the issues raised above being resolved. No amended plans have been submitted to address the concerns raised, however many of the issues could be dealt with via conditions if approval is to be recommended.

73. Clause 28 of SEPP65 requires the consent authority to take into consideration the provisions of the ADG. The Table below assesses the proposal against these provisions.

Table 3: Design considerations of Part 3 and Part 4 of the Apartment Design Guide (ADG)

Clause	Standard	Proposal	Complies
3D - Communal open space	1. Communal open space has a minimum area equal to 25% of the site. -Where it cannot be provided on ground level it should be provided on a podium or roof -Where developments are unable to achieve the design criteria, such as on small lots, sites within business zones, or in a dense urban area, they should: • provide communal spaces elsewhere such as a landscaped roof top terrace or a common room • provide larger balconies or increased private open space for apartments • demonstrate good proximity to public open space and facilities and/or provide contributions to public open space 2. Developments achieve a minimum of 50% direct sunlight to the principal usable part of the communal open space for a minimum of 2 hours between 9 am and 3 pm on 21 June (mid-winter)	The Applicant details that 195sqm (27.3% of the site area) of communal open space is provided on the roof top level and 178sqm (25% of the site area) is provided on Level 1. A review of the plans holistically revealed in actuality there is no useable or function communal area on the first floor. Whilst the landscape plan shows in the landscaped area adjacent to the western boundary is appropriately landscaped, however the stormwater plan details this is the location of the OSD tank reducing the functionality useability of this space. This space can only be accessed from the fire isolated stair which is also a poor design solution and does not promote use of the space. As a result an improved design solution would be for this space to be dedicated to Unit 1.03 whereby it would be more likely to be used by the occupants. The adjoining communal area along the eastern side includes a series of plants (i.e. bamboo screen planting) being over the basement, thereby not offering a great deal in the way of soil depth. This area is compromised in dimension and is poorly located with respect to amenity impacts onto unit 1.04, even though a privacy screen is proposed to a bedroom window. This area offers limited functionality and useability for the future occupants. This space would be of greater benefit if allocated to a unit. The area at the rear of the site is only accessible by the occupants of Units 1.03 and 1.04. The deep soil area is shallow being 3m in width; it is considered this area would not be an appropriate location as a communal area. As a result the only functional and useable area of communal open space is located on the roof. The area provided meets the requirements of the ADG; however this should be secondary to the provision of communal space on the ground floor.	Yes in terms of area as the roof top area of communal open space exceeds the minimum requirement of 25%. The location and type of communal open space is considered unacceptable. Reliance on all of the communal open space being located on the roof level is considered unsatisfactory and there should be some ground floor space dedicated for this purpose that is accessible, function and thereby useable.
3E – Deep Soil zones	1. Deep soil zones are to meet the following minimum requirements: Where the site is greater than1500sqm = 6m min dimension Min deep soil area of 7% (50sqm)	The area of deep soil is provided at the rear of the site with dimensions 3m x 16.155m. This is an area of 48.45sqm which amounts to 7% when rounded up.	Yes numerically compliant. The proposed area is well located with respect to orientation, however the proposed planting of Frangipanis in this space is considered inappropriate given deep soil is to promote larger trees that will assist in screening the lower levels of the building and providing a green canopy. The quality and resolution of this deep soil area is poorly designed, with the landscaping solution being inadequate to provide screening and a green canopy.
3F- Visual Privacy	Separation between windows and balconies is provided to ensure visual privacy is achieved. Minimum required separation distances from buildings to the side and rear boundaries are as follows: Up to 12m (4 storeys) Habitable - 6m Non-habitable – 3m Up to 25m (5-8 storeys) Habitable – 9m Non-habitable – 4.5m	Eastern side Nil to 4.5m. Western side Nil to 4.5m North 6m – 9m	No - refer to assessment below No - refer to assessment below
*Separation Distances (3F Visual Privacy)* The building fails to comply with the minimum separation distances in accordance with the provisions of Part 3F of the Apartment Design Guide (ADG). Part 3F relates to “visual privacy” and establishes minimum or reasonable side setbacks for developments which allow for adequate separation distances between buildings and therefore maintain privacy between properties. The objective of the control is to provide “Adequate building separation distances which are shared equitably between neighbouring sites, to achieve reasonable levels of external and internal visual privacy”. The building envelope and footprint of the mixed use at 85-87 Railway Parade has established a precedent for development in this zone along the northern side of Railway Parade. Along the southern side, the building is aligned with the street frontage for the ground floor commercial component and upper levels are then setback 3m. As this building adjoins the semi-detached dwelling houses (subject site) to the west it has been setback 3m-6m from this common boundary (from Level 2 above) due to the fact it abuts a small scale residential property (the subject site) and although this setback does not comply with the minimum 6m-9m in accordance with the ADG it satisfies the KDCP minimum side setback requirement of 3m. The purpose of the side setback control in the ADG is to provide an “equitable” distribution of setbacks between developments and create physical separation between buildings. The proposed side setbacks of the proposal fail to satisfy the intent of this control as the building is located directly on the common boundary for large sections of the building which does not allow for an equitable sharing of setbacks between developments and lacks the provision of a reasonable amount of physical separation which in turn adversely affects the internal amenity of spaces (ie the first floor communal areas will receive inadequate solar access and the building will be visually bulky and dominating when viewed from the immediately adjoining properties. The proposed developments built form and siting does not align with this building and therefore will read and be bulky and visually dominating given the nil side setbacks and although broken up into two vertical forms with a central lobby area creates both sections of the building being located immediately on the eastern and western boundaries. The siting of the building and lack of physical separation along the western boundary will have an adverse impact on the amenity of the adjoining residential property 93 Railway Parade. The rear section of the building is setback a minimum of 4m (eastern side) and 4.25m along the western side for levels 4, 5 and 6. The desirable built form and urban design pattern for this B2 precinct will not be achieved with the proposed built form given the proposed setbacks. The lack of separation along both side boundaries will create adverse amenity impacts, particularly upon the residential dwelling house at 93 Railway Parade. The building will be extremely large, imposing and dominating visually and will overshadow this property. A built form of this scale on the boundary is not considered a satisfactory planning and urban design outcome in this locality.
3G – Pedestrian Access and entries	Building entries and pedestrian access connects to and addresses the public domain Multiple entries (including communal building entries and individual ground floor entries) should be provided to activate the street edge	The residential lobby is accessed via a corridor from the entry within the Railway Parade facade. The Design Review Panel commented on this design feature and are concerned that the corridor is too long and the lobby entry needs to be enlarged and widened. By widening the lobby this will reduce the size of the retail/commercial tenancy. This is not considered to be in the best interest of the development as the commercial/retail unit is a required component of the development, with an area of 97sqm this is considered substandard and its reduction would render this tenancy incompatible with the zone objectives being to encourage employment opportunities. Ideally from a functionality and urban design outcome a larger more defined main entry would be a better design solution, however this is unable to be achieved given the narrow width of the site.	General arrangement is considered acceptable, however the compromised nature of the entry and sense of address is compromised given the width of the allotment and the nature of the other building elements necessary for this type of development.
*Pedestrian Access and entries (3G)* Given the constraints of the site with respect to its width and the comprised urban design form, the applicant was requested to make enquiries as to if the development would require a substation within the front setback. Ausgrid advised that a substation locally can service this development. No details have been provided with respect to plant associated with essential fire services. This is not envisaged to be the case on the single sites being 93, 95, 97 etc Railway Parade, substations will be required and this would substantially diminish and compromise the ground floor commercial/retail uses, lobby and driveway entry resulting in the majority of the streetscape elevation being dominated by plant and services resulting in deactivation of the street interface and an undesirable streetscape form.
3H-Vehicle Access	Vehicle access points are designed and located to achieve safety, minimise conflicts between pedestrians and vehicles and create high quality streetscapes	The vehicular access point is located along the eastern side of the site. Council’s Traffic Engineer has raised concerns regarding the width of the driveway entry as it is 3.3m wide. This narrow driveway width will create traffic conflicts with cars entering and exiting the site. The Applicant has lodged a traffic and parking impact report prepared by Motion Traffic Engineers, however the report assesses numerical compliance and the impact on intersections, but has failed to address the narrow driveway width. The development fails to accommodate a loading bay; this is also an issue of concern as any form of delivery truck is unable to access the site to facilitate the commercial use on the ground floor. There is no on street loading bay within this precinct that could service this development. This area is a busy vehicle and pedestrian thoroughfare given it is located close to the Mortdale train station and the Mortdale Town Centre. In addition Coleborne Avenue contains two (2) schools being Mortdale Public School and Carinya School whereby Railway Parade is a thoroughfare for the local student to access the school premises.	Council’s Traffic Engineers are not satisfied with the width of the driveway it is too narrow for this type of development and sight distances. A signalised traffic light system could be implemented within the basement design which would reduce potential conflicts within the development; however this would create queuing along Railway Street as the development has not accommodated a waiting or passing bay. As a result a vehicle attempting to access the basement would need to wait in Railway Parade if another vehicle is exiting the basement. The signalised system is therefore considered to be unacceptable in this situation. The narrowness of the driveway and the inability to accommodate a waiting or passing bay to facilitate an acceptable functionality of the basement is directly related to the narrow width of the site. The proposal in its current form is considered to be inadequate for a shop top housing development. The absence of a loading bay is of concern given it required to service a commercial tenancy, therefore compromising the viability, functionality and serviceability of the commercial space, which is a key objective of the B2 zone, being to encourage employment opportunities.
3J-Bicycle and carparking	For development in the following locations: - On sites that are within 800m of a railway station or light rail stop in the Sydney Metropolitan Area; or - On land zoned and sites within 400m of land zoned B3 Commercial Core, B4 Mixed Use or equivalent in a nominated regional centre The minimum car parking requirement for residents and visitors is set out in the Roads and Maritime Services Guide to Traffic Generating Developments (RMS), or the car parking requirement prescribed by the relevant council, whichever is less. In accordance with Section 5.4.3 (High Density Residential Flat Buildings) of the RMS Traffic Generating Guidelines. The site is located within the “Metropolitan Sub-Regional Centres” and the following provisions apply; 0.6 spaces per 1 bedroom unit 0.9 spaces per 2 bedroom unit 1.4 spaces per 3 bedroom unit 1 space per 5 units (visitor parking) The provision of at least one loading dock for residential use is desirable, although a dock intended for commercial uses may be sufficient. The parking provisions for commercial use within a high density residential flat building should be separately established by referring to the relevant guidelines for those specific uses.	The site is located within 800m of the Mortdale Railway station as such the RMS provisions are applicable to this assessment. Proposal relies on the following car parking provisions; 3 x 1 bedroom units = 0.6 x 3 = 1.8 spaces 13 x 2 bedroom units = 0.9 x 13 = 11.7 spaces 3 x 3 bedroom = 1.4 x 3 = 4.2 spaces Residential spaces required = 18 spaces Visitor = 19/5 = 4 spaces Total = 22 spaces The proposal requires a total of 22 off street car parking spaces for residents and visitors Commercial parking in accordance with KDCP provisions which is 1 space per 40sqm but given this space is likely to be retail than the provision of 1 space per 25sqm of GFA has been applied. This amounts to 4 spaces Four (4) dedicated retail spaces are provided. A total required car parking spaces including commercial components amounts to a total of 26 spaces. The two (2) basement levels and ground floor area dedicated for car parking caters for the following; · 23 dedicated resident spaces · 4 dedicated visitor spaces · 4 dedicated commercial spaces No Loading Dock provided. No designated Car Wash Bay nominated. Total of 31 car parking spaces are provided. The off street car parking provision exceeds the requirements of RMS/ADG provisions.	The car parking arrangement and number of car spaces provided complies with the ADG/RMS requirements. The proposal complies with the numerical requirements of the ADG given the accessible location of the site, however Council’s Traffic Engineer has raised concerns regarding the width of the driveway access, the lack of a loading dock and the design does not comply with AS2890.1:2004 with respect to minimum sight lines for pedestrian safety.
4A- Solar and daylight access	Living rooms and private open spaces of at least 70% of apartments in a building receive a minimum of 2 hours direct sunlight between 9am and 3pm at mid-winter in the Sydney Metropolitan Area A maximum of 15% of apartments in a building receive no direct sunlight between 9am and 3pm in midwinter	The proposed development provides for a total of fourteen (14) apartments that will receive a minimum of 2 hours of solar access. This equates to 74% of the development.	Complies
4B- Natural Ventilation	At least 60% of apartments are naturally cross ventilated in the first nine storeys of the building. Overall depth of a cross-over or cross-through apartment does not exceed 18m, measured glass line to glass line The building should include dual aspect apartments, cross through apartments and corner apartments and limit apartment depths	The new apartments have been designed to comply with the minimum cross ventilation requirements of the ADG. No apartment exceeds 18m in depth. 100% compliance as all apartments have dual aspects.	Yes - complies
4C-Ceiling Heights	Measured from finished floor level to finished ceiling level, minimum ceiling heights are: Habitable rooms = 2.7m Non-habitable rooms = 2.4m 3.3m for ground floor and first floor in mixed use areas to promote flexibility of use.	Ground Floor Commercial - floor to floor is 3.6m with a 3.4m floor to ceiling height. Levels 1, 2, 3 and 4 have floor to floor heights of 3.05m and internal heights of 2.85m. Level 5 has a floor to floor height of 3.15m as there is a thicker slab required to cater for the rooftop area of communal open space. The floor to ceiling for this level is 2.85m.	The floor to floor and floor to ceiling heights are generally compliant.
4D- Apartment size and layout	Apartments are required to have the following minimum internal areas: 1 bedroom = 50sqm 2 bedroom = 70sqm 3 bedroom = 90sqm The minimum internal areas include only one bathroom. Additional bathrooms increase the minimum internal area by 5sqm each Every habitable room must have a window in an external wall with a total minimum glass area of not less than 10% of the floor area of the room. Daylight and air may not be borrowed from other rooms	One bedroom units have minimum areas of 56sqm. Two bedroom units have minimum areas of 77sqm to 81sqm. Three bedroom units have minimum internal areas of 95sqm Every habitable room has window openings larger than 10% of the room area.	Complies
4D-2 Apartment size and layout	Habitable room depths are limited to a maximum of 2.5 x the ceiling height In open plan layouts (where the living, dining and kitchen are combined) the maximum habitable room depth is 8m from a window	Satisfactory With the minimum floor to ceiling heights complying with the 2.7m minimum, all habitable room depths satisfy the minimum requirements. The apartments have open plan living/dining room layouts.	Complies
	Master bedrooms have a minimum area of 10sqm and other bedrooms 9sqm (excluding wardrobe space). Bedrooms have a minimum dimension of 3m (excluding wardrobe space). 3. Living rooms or combined living/dining rooms have a minimum width of: -3.6m for studio and 1 bedroom - 4m for 2 and 3 bedroom apartments The width of cross-over or cross-through apartments are at least 4m internally to avoid deep narrow apartment layouts	All master bedrooms have a minimum internal size of 10sqm. All bedrooms have minimum dimensions of 3m. All living rooms have minimum widths of 4m. There are no crossover or cross-through apartments proposed.	Complies
4E- Private Open space and balconies	All apartments are required to have primary balconies as follows: -1 bedroom = 8sqm/2m depth -2 bedroom = 10sqm/2m depth -3+ bedroom = 12sqm/2.4m The minimum balcony depth to be counted as contributing to the balcony area is 1m For apartments at ground level or on a podium or similar structure, a private open space is provided instead of a balcony. It must have a minimum area of 15sqm and a minimum depth of 3m	The proposed balconies and terraces which are proposed for all apartments exceed the minimum sizes. 1 bedroom units 10sqm – 50sqm (width minimum 2m) 2 bedroom units 11sqm – 25sqm (width minimum 2m) 3 bedroom units 12sqm – 29sqm (width minimum 3m) The raised rear terrace areas adjacent to Unit 1.03 (29sqm) and Unit 1.04 (50sqm) are substantial in size. Although these are not located directly on ground they act in a similar capacity.	Complies
4F- Common circulation areas	The maximum number of apartments off a circulation core on a single level is eight	Maximum of 4 apartments have access to the lobby at Level 1, 2 and 3. Only 3 apartments access the main lobby at Levels 4 and 5 and 1 apartment accesses the lobby on Level 6.	Complies
4G- Storage	In addition to storage in kitchens, bathrooms and bedrooms, the following storage is provided: 1 bedroom = 6m³ 2 bedroom – 8m³ 3 bedroom – 10m³ At least 50% of storage is to be located within the apartment.	Each apartment has dedicated internal storage spaces within each unit and there are also 19 dedicated storage cages located within the basement levels. In total the amount of storage space provided per apartment is compliance including where it is located.	Complies
4H- Acoustic Privacy	Adequate building separation is provided within the development and from neighbouring buildings/adjacent uses. Window and door openings are generally orientated away from noise sources Noisy areas within buildings including building entries and corridors should be located next to or above each other and quieter areas next to or above quieter areas Storage, circulation areas and non-habitable rooms should be located to buffer noise from external sources	An Acoustic Report was prepared for the proposed development and a series of construction measures have been proposed which are considered to adequately address any acoustic concerns relating to the development proximity to the rail corridor, impacts from mechanical ventilation and plant and in respect to achieving adequate acoustic privacy between units.	Complies
4J – Noise and Pollution	To minimise impacts the following design solutions may be used: • physical separation between buildings and the noise or pollution source • residential uses are located perpendicular to the noise source and where possible buffered by other uses • buildings should respond to both solar access and noise. Where solar access is away from the noise source, non-habitable rooms can provide a buffer • landscape design reduces the perception of noise and acts as a filter for air pollution generated by traffic and industry	The development can comply with the provisions of 4J of the ADG should the application be approval. If the development was setback further from the side boundaries the acoustic outcome would be improved.	Yes
4K – Apartment Mix	A range of apartment types and sizes is provided to cater for different household types now and into the future The apartment mix is distributed to suitable locations within the building	The development offers a mix of 1, 2 and 3 bedroom apartments. 3 x 1 bedroom apartments (16%) 13 x 2 bedroom apartments (68%) 3 x 3 bedroom apartments (16%) The mix is considered to be appropriate.	Complies
4L – Ground Floor Apartments	Street frontage activity is maximised where ground floor apartments are located. Design of ground floor apartments delivers amenity and safety for residents.	There are no ground floor apartments in this development.	Complies
4M - Facades	Facades should be well resolved with an appropriate scale and proportion to the streetscape and human scale.	The façade treatment of the building is considered to be well resolved and the design of the building is modern, contemporary and well considered.	Yes
4N – roof design	Roof treatments are integrated into the building design and positively respond to the street. Opportunities to use roof space for residential accommodation and open space are maximised. Incorporates sustainability features.	The roof design is considered to be consistent with the character of mixed use developments in the area and the LGA. Level 6 terrace located along the frontage of the building with a unit setback and located at the rear.	Complies
4O – Landscape Design	Landscape design is viable and sustainable, contributes to the streetscape and amenity	The proposed landscape design for the rooftop level is considered to be satisfactory and provides good amenity for future occupants. The Landscape Plan is considered to poorly document the landscaping proposed at Level 1. There are no large trees proposed within the rear deep soil area which should act as a buffer and assist in screening the building from its neighbours and the provision of as tree canopy. The communal open space that is centrally located on Level 1 does not include the location of the OSD tanks and these two spaces (adjacent to the lobby) along the eastern and western sides include bamboo and screen planting which does not encourage the useability and general functionality of these spaces. They are poorly detailed and considered. To access the wester space you need to go through the fire isolated central staircase which is not considered to be an appropriate design solution.	Rooftop open space is considered to be acceptable. The Level 1 landscaped area treatment to the central areas and at the rear needs improvement.
4P- Planting on Structures	Planting on structures – appropriate soil profiles are provided, plant growth is optimised with appropriate selection and maintenance, contributes to the quality and amenity of communal and public open spaces	There are planter boxes proposed at the front of the development above the ground floor and at the roof top level. The design and location of planters is considered to be satisfactory and improves the overall articulation of the building.	Complies
4Q – Universal Design	Universal design – design of apartments allow for flexible housing, adaptable designs, accommodate a range of lifestyle needs	Satisfactory	Complies
4R – Adaptive reuse	Adaptive reuse as apartment of existing buildings- new additions are contemporary and complementary, provide residential amenity while not precluding future adaptive reuse.	This is a new development.	Complies
4U – Energy Efficiency.	Development incorporates passive environmental design, passive solar design to optimise heat storage in winter and reduce heat transfer in summer, natural ventilation minimises need for mechanical ventilation	A compliant BASIX Certificate accompanies the application.	Yes – could be improved with the provision of solar panels on the roof and also designated ground floor rainwater tanks which look to be included as part of the BASIX certificate but not allocated/designated on the plan. A 3,000L rainwater tank is to be catered for and has been included as part of the BASIX Certificate commitments. It is unclear where this tank is to be located as it is not referenced in the plans but has been catered for to allow for watering of communal landscaped areas and to be used in the car wash bay.
4V – Water management and conservation	Water management and conservation – potable water use is minimised, stormwater is treated on site before being discharged, flood management systems are integrated into the site design	The proposed stormwater/drainage design has been referred to Council’s Engineering Services section; no concerns have been raised subject to the imposition of standard conditions if the application was being supported.	Complies
4W – Waste Management	Waste management – storage facilities are appropriately designed, domestic waste is minimised by convenient source separation and recycling	The waste management arrangement involves the provision of a garbage room at the ground floor level to the north of the lift. Bins will need to be conveyed to the street level as no truck access has been provided. The application was referred to Council’s Waste Management Officer. The waste storage area adequately caters for the residential component but fails to provide space for the future retail use.	Yes - Residential requirements satisfactory and compliant. No - Retail/ Commercial component – unsatisfactory as no bins or garbage storage is provided for this part of the development.
4X – Building Maintenance	Building design provides protection form weathering Enables ease of maintenance, material selection reduces ongoing maintenance cost	The proposed external materials, colours and finishes are satisfactory and the use of raw concrete finish will require minimal maintenance. The proposed raw concrete finish is a new and contemporary finish that will be new to the area. There are no developments in the immediate locality that include this finish. The building will stand out.	Yes in general the proposed materials and finishes will be low maintenance however the proposed raw concrete finish is a contemporary aesthetic which is not representative of current and new developments and it will make this development more dominating.

Environmental Planning Instruments

Kogarah Local Environmental Plan 2012

Zoning

74. The subject site is zoned B2 Local Centre under the provisions of the Kogarah Local Environmental Plan 2012 (KLEP2012). Refer to zoning map (Figure 7) below. The proposed development is a mixed use development defined as “shop top housing” which is a permissible land use in the zone.

75. The objectives of the zone are as follows:

· To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area.

· To encourage employment opportunities in accessible locations.

· To maximise public transport patronage and encourage walking and cycling.

76. The subject site is located within a business zone precinct. Due to the site’s accessibility to Mortdale Railway Station and local shopping precinct there is a clear expectation through the zoning to provide for retail and commercial uses to service the local community. The precinct is considered to be an extension of the Mortdale Town Centre and the emphasis is placed on the provision of employment generating uses which promote the commercial nature of the area whilst also allowing for the provision of residential accommodation, however the residential component should be secondary to the overall objective and intent of the zone to promote business operations through a variety of land uses.

77. The proposal fails to satisfy the objectives of the zone as the retail component of the development on the ground floor is minimal in area comprising 97sqm which amounts to a mere 6% of the overall gross floor area (GFA). This small tenancy combined with the lack of a loading bay, no provision of a dedicated commercial waste area and the narrowness of the driveway access makes the viability and functionality and serviceability of the retail component questionable with respect to viability. The size and amount of retail area is tokenistic and does not show a commitment in satisfying the objectives of the zone being primarily to encourage employment opportunities.

78. The extent to which the proposal complies with the relevant standards of Kogarah Local Environmental Plan 2012 (KLEP2012) is outlined in the table below.

Figure 7: Zoning map – the site is outlined in red

KLEP2012 Compliance Table

Clause	Standard	Proposed	Complies
2.2 Zone	B2 Local Centre zone	The proposal is defined as shop top housing which is a permissible use within the zone.	Yes by definition only. The proposal does not satisfy the objectives of the local centre zone.
2.3 Objectives	Objectives of the Zone	Consistent with zone objectives	No – as discussed above
4.3 – Height of Buildings	21m as identified on Height of Buildings Map	The building exceeds the 21m height limit and achieves an overall height at the highest point of 22.35m. The lift overrun is the only element which exceeds the height control.	No – see discussion below regarding Clause 4.6 Statement which has been submitted.
4.4 – Floor Space Ratio	2.5:1 as identified on Floor Space Ratio Map	The proposed FSR is 2.5:1. The proposal complies with a GFA of 1,770sqm which amounts to a total FSR of 2.48:1.	Yes
4.5 – Calculation of floor space ratio and site area	FSR and site area calculated in accordance with Cl.4.5	The GFA calculations provided by the Applicant did not include areas that need to be included as GFA. The GFA plans submitted with the application include all relevant areas however exclude the communal room, kitchenette and accessible WC on the roof which are enclosed and need to be included together with the garbage room on the ground floor as per the definition of GFA in the KLEP. The rooftop areas amount to 26sqm of additional floor area and the garbage room some 12sqm when included the total GFA is 1,770sqm which amounts to an FSR of 2.48:1 which still complies with the maximum allowable FSR of 2.5:1. These calculations are the basis of the assessment.	Yes
5.10 – Heritage Conservation	The objectives of this clause are; (i) to conserve the environmental heritage of Kogarah, (ii) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views.	The site is within the vicinity of the Mortdale Railway Station and car sheds, which is listed as an item (I71) of State significance within the Hurstville Local Environmental 2012. Council has not required a heritage impact assessment and considered that the proposal is unlikely to result in any undue impacts on the nearby item. Notably, a DA for a new 7 storey mixed use development at No.1 Ellen Subway has been determined and approved by the Georges River Local Planning Panel on 21 February 2019 and if constructed this building will largely screen the proposed development from the rail corridor. The proposed development is outside the immediate visual catchment and will not impact structurally as a result this item is unlikely to adversely affect the integrity and significance of the item.	Yes
6.1 Acid Sulphate Soils (ASS)	The objective of this clause is to ensure that development does not disturb, expose or drain acid sulfate soils and cause environmental damage	The site is not affected by any Acid Sulphate Soils.	Yes
6.2 Earthworks	To ensure that earthworks do not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land	The proposal includes the provision of two levels of basement car parking. This is a standard amount of excavation and site works to accommodate a development of this scale and density. The proposed earthworks are not considered to be unreasonable.	Yes
6.3 Flood Planning	The objectives of this clause are as follows— (a) to minimise the flood risk to life and property associated with the use of land, (b) to allow development on land that is compatible with the land’s flood hazard, taking into account projected changes as a result of climate change, (c) to avoid significant adverse impacts on flood behaviour and the environment.	The Site is not affected by any flood planning restrictions.	Yes
6.5 Airspace Operations	The consent authority must not grant development consent to development that is a controlled activity within the meaning of Division 4 of Part 12 of the Airports Act 1996 of the Commonwealth unless the applicant has obtained approval for the controlled activity under regulations made for the purposes of that Division.	The height of the proposed development is above the Obstacle Limitation Surface (OLS) level of 15.24m. The application was referred to Sydney Airports for their formal concurrence. To date no response has been received. If a response has not been received within 21 days then concurrence can be assumed.	Yes

Clause 4.6 Exceptions to development standards

Detailed assessment of variation to Clause 4.3 Height of Buildings

79. The proposed development seeks a variation to the development standard relating to height (Clause 4.3). The KLEP identifies a maximum height of 21m for the Site (refer to Figure 7 below) and the proposed development will exceed the height by 1.35m which comprises of the lift overrun only located within the new roof terrace. This is a 6.4% variation above the control. Any variation to the height can only be considered under Clause 4.6 – Exceptions to Development Standards of the KLEP. The area and degree of non-compliance with the height is shown in Figure 6 below.

80. Clause 4.6(1) outlines the objectives of the standard which are to “provide an appropriate degree of flexibility in applying certain development standards to particular development” and “to achieve better outcomes for and from development by allowing flexibility in particular circumstances”.

Figure 8: Extract from the KLP (Height Map_003) designated as “R” which notes a 21m height limit

81. Clause 4.6(3) states that:

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

- that there are sufficient environmental planning grounds to justify contravening the development standard”

82. To support the non-compliance, the applicant has provided a request for a variation to Clause 4.3 in accordance with Clause 4.6 of KLEP 2012. The Clause 4.6 request for variation is assessed as follows:

Is the planning control in question a development standard?

83. Height of Buildings limitation under Clause 4.3 of the KLEP 2012 is a development standard.

What are the underlying objectives of the development standard?

84. The objectives of Height of Buildings standard under Clause 4.3 of KLEP 2012 are:

(a) to establish the maximum height for buildings,

(b) to minimise the impact of overshadowing, visual impact and loss of privacy on adjoining properties and open space areas,

(c) to provide appropriate scale and intensity of development through height controls.

85. In order to address the requirements of Subclause 4.6(4)(a)(ii), the objectives of Clause 4.3 are addressed below.

86. Applicants Comments: “The following definition under Kogarah Local Environmental Plan 2012 is important in considering the proposed variation:

building height (or height of building) means:

(a) in relation the height of a building in metres – the vertical distance from ground level (existing) to the highest point of the building, or

(b) in relation to the RL of a building – the vertical distance from the Australian Height Datum to the highest point of the building, including plant and lift overruns, but excluding communication devices, antennae, satellite dishes, masts, flagpoles, chimneys, flues and the like.

87. Having regard to the above definition, the non-compliance to the height of buildings principal development standard relates to the lift overrun, shown on the architectural drawings to have a max RL of 69.85m AHD.

88. The corresponding ground level RLs on the Survey Plan that accompanies the application indicates a lowest RL of 47.5m directly below the lift overrun where the height breach occurs. This represents a variation of 6.4% above the building height standard.

a) To establish a maximum height for buildings.

89. Despite the non-compliance, the scale and form of the building is consistent with the intended redevelopment potential of the land and the desired future character of the locality. The building presents a 6 storey façade to Railway Parade and it is noted that with the exception of the lift overrun the building sits within the 21m height limit.

b) To minimise the impact of overshadowing, visual impact and loss of privacy on adjoining properties and open space areas.

90. The proposed building largely complies with the statutory height limit, with the exception of a portion of the lift overrun, located in the centre of the building. However, the additional height of the lift overrun above the 21m standard will not cause a significant increase in overshadowing or an unreasonable loss of sky exposure to the adjoining properties or surrounding public domain. Further, the non-compliant height does not contribute to an unreasonable visual impact or a loss of privacy to adjoining properties.

c) To provide appropriate scale and intensity of development through height controls.

91. As noted above, despite the non-compliance, the scale and intensity of the building is consistent with the intended redevelopment potential of the land and the desired future character of the locality.

92. It is considered that the proposed development achieves the objectives of the standard for the following reasons:

· the proposed scale and massing of the building is consistent with the desired future character of the locality;

· the non-compliance relates to the lift overrun in the centre of the building and does not seek to increase the number of storeys or density of the development. As such, there is no tangible nexus between the height variation and the overall land use intensity;

· the area of non-compliance will not result in any adverse impacts on the adjoining land uses with respect to overshadowing, loss of privacy, inappropriate scale etc.”

Figure 9: The extent of the variation shown in Section (courtesy of AB Works)

Council response: The height control objectives articulates the ultimate function of the establishing the height of buildings. The maximum height for buildings on land within the former Kogarah Local Government Area is identified on the Height of Buildings Map. As previously described, the maximum building height permitted on the subject site is 21m and the maximum height of the proposal is 22.35m. The proposal contravenes the standard, as a result the amount and degree of non-compliance and its resultant impact needs to be considered.

When considering the breach against the objectives of the height standard, the lift overrun is centrally located within the roof space and will not be visible from the street. The structure will be visible when travelling eastwards along Railway Parade from Colebourne Avenue and only if the adjoining properties to the south remains undeveloped. The height breach will not be visible when travelling westward along Railway Parade as this development will obscured by the development currently under construction at 85-87 Railway Parade. The visual impact however is considered to be minimal.

In respect to overshadowing, both immediately adjoining properties 85-87 and 93 Railway Parade will receive a compliant amount of solar access during midwinter (June) (refer to Figure 10) below. 93 Railway Parade will be overshadowed until midday but will not be affected from 12noon onwards. 85-87 Railway Parade is not affected by the proposed development from 9am until midday however the building at 85-87 will overshadow itself during this time. The proposal complies with the solar access requirements for adjoining properties.

Also the area of non-compliance relates to 1.35m of the lift overrun. This small section of the lift core will overshadow the roof space and will not affect adjoining properties.

Figure 10: Overshadowing Diagrams during midwinter (courtesy of AB Works)

The proposed height of the proposal is considered to be in keeping with the desired future character of development within this precinct, and is consistent with the overall approved height for the mixed use developments at 85-87 Railway Parade and 1 Ellen Subway. The main problem and concern with the proposal is its built form and design relating to setbacks and access arrangements.

Compliance is unreasonable or unnecessary in the circumstances of the case (clause 4.6(3)(a))

93. Applicants comments: “In consideration of the above, Council’s attention is also drawn to the Department of Planning and Environment’s publication “Varying development standards: A Guide” (August 2011), which outlines the matters that must be considered when varying a development standard.

94. The Guide has essentially adopted the 5 point test for consideration set out by the Land and Environment Court in Wehbe v Pittwater Council (2001) NSW LEC 827, specifically that there are five different ways in which compliance with a development standard can be considered unreasonable or unnecessary, namely:

· the objectives of the standard are achieved notwithstanding non-compliance with the standard;

95. Comment: As discussed above, the proposal is considered to be consistent with the objectives of the building height standard, notwithstanding the numerical variation.

· the underlying objective or purpose of the standard is not relevant to the development and therefore compliance is unnecessary;

96. Comment: The objectives of the building height standard remain relevant and the proposal is consistent with, or at least is not antipathetic to the objectives of the building height standard, notwithstanding the numerical variation.

· the underlying object of purpose would be defeated or thwarted if compliance was required and therefore compliance is unreasonable;

97. Comment: The proposal is consistent with the objectives of the building height standard, notwithstanding the numerical variation, and it would not defeat the purpose of the standard.

· the development standard has been virtually abandoned or destroyed by the Council's own actions in granting consents departing from the standard and hence compliance with the standard is unnecessary and unreasonable;

98. Comment: The building height standard has not been abandoned by Council through its actions in granting consent for other buildings in the vicinity that depart from the standard.

· the zoning of the particular land is unreasonable or inappropriate so that a development standard appropriate for that zoning is also unreasonable and unnecessary as it applies to the land and compliance with the standard would be unreasonable or unnecessary. That is, the particular parcel of land should not have been included in the particular zone.

99. Comment: The proposed mixed use development is a permissible land use and the zoning of the site is considered to be appropriate in this location and in the context of the surrounding land uses and built form.

100. In light of the above, it has been demonstrated that the first test under the Wehbe method has been met, such that the requirement to strictly adhere to the numerical development standard for building height is considered to be unreasonable and unnecessary in this instance.”

101. Council’s comments: In respect to Prestons CJ judgement the NSW Land and Environment Court and in accordance with a recent decision (Initial Action Pty Ltd v Woollahra Council [2018] NSWLEC 118), the NSW Land and Environment Court has established a “five part test” for consent authorities to consider when assessing a DA proposing a clause 4.6 request for variation has established the five part test (as outlined above). In this case it is considered that the proposal satisfies the five part test for the following reasons;

a. As previously discussed the objectives of the height standard are considered to be satisfied despite the non-compliance.

b. The underlying objective of the standard remains relevant and therefore compliance is necessary and warranted. The majority of the building sits within the height limit with the lift overrun, an ancillary operational structures exceeding the control. No habitable area or its associated roof element extends beyond the 21m height limit.

c. In this case the underlying objective will not be defeated or thwarted by the approval of the building. As the building has been designed to generally comply with the height standard. The height control will not be abandoned or destroyed through this or any recent approvals for similar mixed use developments.

d. The Local Centre zone is an appropriate zoning for the site and this parcel of land has been recently rezoned and up-scaled. The proposed scale of the development is consistent with the anticipated height for developments within this zone and precinct.

Clause 4.6(3)(b) are there sufficient environmental planning grounds to justify contravening the standard

102. Applicant’s comments: “Based on the discussion above, it is considered that there are sufficient environmental planning grounds to justify contravening the development standard. Key environmental planning grounds to support the variation include:

· Despite the lift overrun exceeding the height of buildings principal development standard, the remainder of the building sits within the 21m height limit. As such, the overall bulk and scale of the building is considered to be acceptable in terms of its scale and built form and the relationship of the building to the street and adjoining development;

· The additional height of the lift overrun does not constitute an additional storey and maintains a building of a scale and form that is appropriate for the location, providing visual interest and a varied building profile; and

· Despite the increased height of the lift overrun above the statutory height limit, the proposed development will not have an unreasonable impact on adjoining sites in terms of overshadowing, loss of privacy or views.

· Despite the minor breach to the building height standard, the lift overrun is located so that it will not be easily seen from the street frontage and the building will make a positive contribution to the streetscape character and visual amenity of the area.

103. The proposed development will 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.

104. The objectives of the zone and satisfaction with these is outlined below;

· To provide a range of retail, business entertainment and community uses that serve the needs of the people who live in, work in and visit the local area.

105. The retail tenancy will provide a new retail opportunity that will provide a non-residential use that serves the needs of the local and wider community and will add to the economic prosperity of Mortdale.

· To encourage employment opportunities in accessible locations.

106. The retail tenancy will provide an opportunity for a new business to occupy the tenancy. This will provide employment opportunities and the premises is well located in terms of access to public transport.

· To maximise public transport patronage and encourage walking and cycling.

107. The proximity of the site to public transport options (bus and rail) will encourage walking and cycling.”

108. Officer’s Comment: In accordance with the provisions of Clause 4.6(4)(a)(ii) a consent authority must be satisfied that the contravention of a development standard will be in the public interest because the development is consistent with the objectives of the development standard and the objectives of the zone in which the development is proposed to be carried out. The objectives of the B2 Local Centre zone are generally satisfied by the development as a whole despite the non-compliance with the height which is considered to be minor in nature. The amendment to the height control will not affect the overall outcome and intention of the zone objectives which are dictated largely by the design and built form intent. The proposed design, layout and siting of the building is considered to be inappropriate and the overall form inconsistent with the established precedents in the area. These issues are separate to that of the scale and height of the development which is considered to be acceptable and in this case the “public interest” test has been satisfied as the variation is minor and satisfies the objectives of the height standard and objectives of the zone. The proposed form of the development and lack of retail/commercial spaces is not considered to satisfy the objectives of the B2 zone, however when considering the small variation in the height which only relates to the lift overrun this small breach is not considered to undermine the objectives of the zone as the Clause 4.6 Statement focuses on the variation and its impact not the building as a whole.

(d) the concurrence of the Director-General has been obtained.

109. In accordance with clause 64 of the Environmental Planning and Assessment Regulation 2000, Council may assume the Secretary’s concurrence for exceptions to development standards for applications made under clause 4.6 of the LEP. This was further confirmed by directions provided within Planning Circular PS 18-003 issued on 21 February 2018.

Whether contravention of the development standard raises any matter of significance for State or regional environmental planning (Clause 4.6(5)(a))

110. Contravention of the maximum height development standard proposed by this application does not raise any matter of significance for State or regional environmental planning.

Conclusion – Assessment of Clause 4.6 Request for Variation

111. Despite the non-compliance in terms of the height, the proposed variation is considered to be acceptable and satisfies the provisions of Clause 4.6. The encroachment of the lift overrun is considered minor and will not create any adverse environmental or amenity impacts. The proposed development satisfies the objectives of the height control and the zone objectives and is therefore considered to be in the public interest.

112. It is considered that the Clause 4.6 Statement lodged with the application addresses all the information required pursuant to Clause 4.6 and the statement is considered to be well founded as there are sufficient environmental planning grounds to justify contravening the standard in this particular case.

Development Control Plans

KOGARAH DEVELOPMENT CONTROL PLAN NO 2013 (KDCP)

113. The proposal needs to address and satisfy the provisions of Part B – General Controls and Part D1 – Development in the B1 Neighbourhood Centres and B2 Local Centre zones as part of the KDCP. These provisions are addressed in more detail below.

KDCP Compliance Table

Part B General Controls
Control		Standard	Proposed	Complies
B1 Heritage Items and Heritage Conservation Areas		Ensure development protects and enhances the environmental and cultural heritage of Kogarah	In respect to the heritage provisions (Part B1) of the KDCP, the site is located within the vicinity of Heritage Item - Mortdale Railway Station and car sheds, which is listed as an item (I71) of State significance within the Hurstville Local Environmental 2012. Council has not required a heritage impact assessment and it is considered that the proposal is unlikely to result in any undue impacts on the nearby item as it is removed from the visual catchment of this item and it will not be impacted structurally by this development. The subject site is separated by the presence of 1 Ellen Subway from the Railway Line. The integrity and significance of the item will not be diminished or adversely impacted on by the proposed development.	Yes
B2 – Tree Preservation and Greenweb		Development approval is required to ringbark, remove, cut down or destroy any tree that has a height greater than 3.5m or branch spread exceeding 3m in diameter. This locality is within the habitat reinforcement corridor area of the Green Web. In this regard, the provisions of Part B2 Section 2 apply.	There are three (3) established trees (Palm Trees) to be removed but these are not considered to be significant species. Discussion regarding tree removal was addressed earlier in this report. The site is not located within a Green Web habitat.	Yes
B3 – Developments near busy roads and rail corridors		Acoustic assessments for noise sensitive developments as defined in clauses 87 and 102 of the Infrastructure SEPP may be required if located in the vicinity of a rail corridor or busy roads.	This part of the KDCP is relevant as the density of the proposal is being increased and it will generate an increase in parking. The planning control in respect to this section of the DCP states that “Acoustic assessments for noise sensitive developments as defined in clauses 87 and 102 of the Infrastructure SEPP may be required if located in the vicinity of a rail corridor or busy roads”. The issue of noise and potential acoustic impacts have been discussed earlier in this report and can comply if the proposal was to be supported and the recommendations of the Acoustic assessment implemented. Clause 87 of the Infrastructure SEPP refers to development “that is on land in or adjacent to a rail corridor and that the consent authority considers is likely to be adversely affected by rail noise or vibration”. Clause 85 (development adjacent to rail corridors) relates to immediately adjoining sites. The site is setback from the rail corridor by approximately 23m-31m as shown in Figure 10 below. The Acoustic report has also considered all background noise sources in its assessment. It is therefore considered that Clause 87 of the SEPP is not relevant in this case due to the adequate separation distance. State Rail was notified of the proposal on 25 July 2019 in accordance with the provisions of Clause 86 (Excavation in, above, below or adjacent to rail corridors) of the Infrastructure SEPP due to the proximity of the development being within 25m of the rail corridor when measured horizontally. To date no response has been received and formal concurrence can been assumed.	Yes
B4 – Parking and Traffic		1 bedroom unit = 1 space/unit 2 bedroom unit = 1.5 spaces/unit 3 bedroom unit = 2 spaces/unit 1 visitor space/5 units or part thereof, and 1 designated car wash bay which may also be a visitor space. 1 space per 25sqm of retail floor space 1 Loading Bay per retail space that has a floor area of between 15sqm-500sqm A minimum of 1% of the total number of car parking spaces within the development are to be designated “accessible” spaces for people with mobility impairments. Bicycle parking 1 space per 3 dwellings plus 1 space per 10 for visitors No minimum requirements for Motorbike parking Internal car park layouts, space dimensions, ramp grades, access driveways, internal circulation aisles and service vehicle areas shall be designed in accordance with the requirements set out in AS 2890.1 (2004) and AS 2890.2 (2002) for off street parking and commercial vehicles.	Required Residential 3 x 1bedroom units = 3 spaces 13 x 2 bedroom units = 19.5 spaces 3 x 3 bedroom units = 6 spaces 19/5 visitor spaces = 3.8 spaces Total = 33 spaces required (29 resident and 4 visitor) Provided = 31 spaces (23 resident and 4 visitor) The development is deficient by two (2) car spaces in accordance with the KDCP; however the RMS Guide to Traffic Generating Development provisions override Council’s provisions by virtue of the development being subject to SEPP 65. The development complies with the RMS provisions given the accessibility of the site and close proximity to the Mortdale Railway Station. No designated car wash bay provided 97sqm/25sqm = 4 spaces required 4 spaces provided for the retail component No loading bay has been provided Three (3) accessible spaces are provided which exceeds the requirement. Residential – 1 space per 3 units 19/3 bicycle spaces = 6 spaces required. Retail – 1 per 5 car parking spaces = no minimum bicycle parking required as only 4 designated retail spaces are provided however 2 bicycle spaces have been catered for. Provided - 9 bicycle spaces (2 x retail, 3 x resident and remaining 4 spaces for visitors) Three (3) spaces provided for a motorbike The internal layout and size of car parking spaces in the basement levels is considered satisfactory. The internal driveway and access is 5.8m wide and should be a minimum of 6m. Council’s Traffic Engineer is not satisfied with the narrow width of the driveway which will have the potential to create conflicts with vehicles entering and leaving the site. Consideration was given to the installation of an internal traffic light system. Council’s Traffic Engineer considered this option but had concerns with the queuing in Railway Parade, as a result the preferred option is that the driveway be widened to cater for two-way access or to provide a waiting/passing bay. However, the narrow width of the site significantly restricts this option. The problem that will be created and cannot be overcome is the potential queuing of vehicles on Railway Parade whilst cars are exiting the site and the internal constraint with vehicles in the basement waiting to access the ramp. The provision of a waiting/passing bay would eliminate this concern.	No but ADG provisions prevail and the proposal complies with RMS Traffic Generating Guidelines for parking. No but could comply via a condition if consent is recommended Yes No Yes Yes Yes No – access internally should be increased to 6m which would improve manoeuvrability within the basement levels.
B5 – Waste Management		Submit a Waste Management Plan (WMP).	The application was accompanied by a WMP which was assessed by Council’s Coordinator of Environmental Sustainability. The bin storage area and number of residential garbage bins was considered to be satisfactory however there is no area designated for retail waste bins.	Yes No
B6 – Water Management		Detention storage is to be provided that is equal to or greater than the specified Site Storage Requirements (SSR). Rainwater tank installed to meet BASIX water conservation requirements will be given credit for SSR purpose. Drainage easements servicing stormwater pipes and/or overland runoff from catchments upstream of the development site are to be managed according with Council’s guidelines. Discharge of stormwater runoff from a development site is to be undertaken in accordance with the design practice note, Site Drainage and Flood Management regarding direct discharge to kerb, discharge to a Council owned stormwater conduit, discharge to natural areas, discharge through private property and discharge within the development site.	The subject site is not located within flood prone land. The application is accompanied by a BASIX certificate and the proposal complies with the commitments. The Certificate includes the provision of a 3000L Rainwater Tank to water common landscaped area and to be used in a car wash bay however; this requirement is not annotated on the plans. The application was referred to Council’s Stormwater Engineers who assessed the proposed stormwater and drainage arrangement and are generally satisfied with the layout as the development intends on draining to the street. Satisfactory	Yes Yes – but hasn’t been referenced in the plans. Generally satisfactory subject to the imposition of conditions if approval is to be recommended. Yes subject to conditions if the application was to be supported.
B7 – Environmental Management		Orient the building, as far as possible, so that the longest side is on the east-west axis. The main facades of a building should be orientated towards the north, preferably within a range of 30 degrees east and 20 degrees west of true north. Maximise the number of windows on the northern face of the building. The use of dark coloured roofing is discouraged unless solar cells are integrated into the roof. Minimise glazing on the southern and western sides of the building.	The application is accompanied by a BASIX certificate which confirms compliance with the minimum requirements of the SEPP (thermal comfort and water usage). The development has been orientated so that primary balconies and living spaces face north. The proposed flat roof includes a roof terrace and the proposed finishes and colours are light and modern. Roofing materials are lighter and non-reflective. The southern side of the building fronts Railway Parade and windows and openings are orientated to face the street as this is the main façade.	Yes
Part D1 – Development in the B1 Neighbourhood Centres and B2 Local Centres zone
3.1 Streetscape	Infill development is to respect and maintain consistency with the established rhythm and scale of existing shopfronts. Parapets are to be utilised for the consistency of street frontage and screening of unsightly roof structures. Facades are to be ordered and articulated to visually break up the building massing, for example through materials, colour and the design Site and design vehicular access (driveways, parking facilities, service access and garages) away from the main street frontage, from rear lanes or secondary streets		The proposed development is not considered to be infill. This site and its adjoining neighbours have been rezoned to B2 Local Centre so this precinct is a new Local Centre zone and is essentially an extension of the existing B2 Local Centre zone located to the west of Mortdale Train Station. The subject site is located within a “developing” environment. Two recent DA approvals, in particular the shop top housing development at 85-87 Railway Parade has established a precedent for future development along this streetscape. This building sits across two sites and its frontage to Railway parade exceeds 30m. This proposal has a very narrow frontage of 16.1m restricting the full potential of the site and compromises the quality of spaces on the ground floor and the interface with the street from an urban design perspective. Vehicular access can only be achieved off Railway Parade. By approving this application without site amalgamation, this will potentially establish a poor precedent with a series of driveway access points within close proximity to one another along Railway Parade which is considered to be a poor urban design and planning outcome. In addition the single basement accesses that would result from these developments will result in queuing on Railway Parade and compromising the flow of traffic and pedestrian safety in a busy road network and pedestrian thoroughfare which is considered problematic. Council’s Traffic Engineer also raises concerns regarding pedestrian sight lines as the single driveway restricts driver visibility.	No
3.4 Height	Building heights are to be in accordance with the Locality Controls. Buildings are massed towards the street frontage and step down towards the rear, to be in keeping with the existing retail/commercial built form pattern and compatible with the scale and character of adjacent residential areas. Where allotment adjoins a low density residential area, buildings should be: (i) reduced in height in accordance with the locality controls; and (ii) setback from the adjoining property boundary The height of new development at the street boundary is to be no more than the prevailing height of the parapets of any adjacent and neighbouring heritage buildings. Floor to ceiling heights should be a minimum of 3m at ground floor level, to allow for a range of uses including retail, commercial offices and home offices. Floor to ceiling should be a minimum of 2.7m at the upper storeys of the building, to allow for a range of uses, and to improve the environmental performance and amenity of the building.		Generally complies with KLEP height control. The proposal is inconsistent with the approved mass and form of the shop top housing development currently under construction at 85-87 Railway Parade as there are inadequate side setbacks provided. The site adjoins No.93 Railway Parade which is currently a residential dwelling. There is no side setback along this boundary and the height and mass of the proposed development is considered excessive. 85-87 Railway Parade includes a 3m side setback along the western side to provide some separation between the site and the subject property. Complies Complies	Yes – see clause 4.6 assessment above. Built form siting is inconsistent with the future desired character of development along the northern side of Railway Parade. Design response is not considered to be acceptable Yes Yes
3.5 Setbacks	Buildings adjacent to public roads are generally to align with and be built to the street frontage to provide continuity in the streetscape and encourage active frontages to ground level. Street setbacks at ground level are permitted only: (i) Where the existing footpath is narrow and the provision of additional pedestrian space is desirable (ii) Where the established pattern is setback (for example where there are residential buildings within the locality) (iii) Where the setback enables or enhances visual appreciations of adjacent heritage items. Side setbacks are generally not permitted in order to maintain the continuity of active frontages, unless specified in the locality controls. Where the locality abuts a residential zone and/or a residential allotment, the side setbacks are generally to be a minimum 3m, except where the locality character is established by the existing footprints and the allotment capacity of the locality would be unreasonably constrained. Refer to the Locality Controls of Part D2 for specific side setback requirements. Rear setbacks are determined by the context including the amenity of neighbouring residential uses and the amenity of any rear lanes. Refer to Locality Controls within Part D2 for specific rear setback requirements. Upper level street setbacks are required to any residential component above retail/ commercial uses together with building design and apartment layout that satisfactorily mitigates the impacts of noise, fumes and vibration on major roads.		The proposal complies with this control however will not be consistent with the built form of the adjoining shop top housing development at 85-87 Railway Parade. No setback is proposed on the ground floor. This is accepted if buildings are already established on the common boundary. The subject site abuts a residential allotment and a 3m side setback is required. The development at No.85-87 Railway Parade has included a 3m side setback along the western side of the building. The 6m rear setback (to the building façade) is considered satisfactory and in accordance with the ADG requirements for minimum separation distances. From Level 1 above a 3m setback to the street is provided which is consistent with 85-87 Railway Parade.	Yes Yes N/A No Yes Yes
3.6 Building Design	Use non-reflective glass or recess glass behind balconies to minimise reflectivity. Windows and openings are to be generally of a vertical character and located within vertical bays.		The façade is well designed although the side setbacks and its relationship to the approved development to the east is considered to be inconsistent with the form and massing of this building which is currently under construction.	No
Awnings	Awnings should retain any original awning features present that contribute to the desired locality character. Provide under awning lighting to improve public safety. Design awnings in the high range 3.6m – 4m and no higher or lower than adjoining awnings. Provide awnings flat or near-flat in shape (not tilted upwards away from the facade), and opaque in finis		The awning design as proposed satisfies Council’s requirements. It seems through the design that the awning will be generally consistent with the awning proposed as 85-87 Railway however due to the slope of the land the awning will sit higher.	Yes
Visual and acoustic privacy	Design building separation for parallel ranges of buildings to at least the following standards for the residential component: - 12 metres between habitable rooms/the edge of their balconies - 9 metres between habitable rooms/the edge of their balconies and non-habitable rooms - 6 metres between non-habitable rooms Offset facade openings from existing openings in adjacent development to minimise direct overlooking of rooms and private open spaces. For street wall buildings, design zero side setbacks to result in zero building separation, providing dual aspect commercial or residential uses with openings to the front (street) and the rear. For ground floor retail/commercial uses, provide appropriate rear and side setbacks to adjacent residential uses, and design building layout to avoid overlooking of private spaces. Utilise design elements to increase levels of privacy such as landscaping, screening, offset windows, recessed balconies, louvres, planter boxes, pergolas or shading devices.		The building has been designed to respect the siting of adjoining buildings in respect to privacy. Balconies and window openings have been designed to minimise any potential for overlooking to the area or into key spaces at 93 Railway Parade.	Yes
D2 – Commercial Locality Guides (Mortdale)
18.1.1 Height	The maximum overall building height including any residential component (measured from natural ground level) = 7m to the eave and 9m to the ridge. The ground floor is to have a minimum floor to ceiling height of 3.2m while all other floors are to have a minimum floor to ceiling height of 2.7m. Only one (1) level or floor is permitted below natural ground level, which can only be used for car parking purposes.		These precinct controls have not been updated since the KLEP changes to the zoning, height and FSR controls. The proposal generally satisfies the KLEP height control and the floor to ceiling heights are also compliant with the KDCP and ADG. Two (2) basement levels are proposed to cater for off-street car parking. The DCP control of permitting one basement level was based on the lower scaled controls (height of 9m and density of 1:1).	No – but satisfies KLEP which prevails No but the control is not considered applicable as the development controls and zoning have been amended.
18.1.2 Density	The maximum permitted gross floor area of any building or buildings erected or proposed to be erected on this land is 0.5:1. The floor space ratio, may be exceeded only if: (i) the gross floor area in excess of 0.5:1 is used only for the purposes of dwellings; and (ii) the ratio of the gross floor area of the building or buildings to the site area for the respective zone does not exceed 1:1.		The GFA satisfies the KLEP control of 2.5:1. The DCP control has not been updated to reflect the amended LEP control in relation to floor space.	No but complies with KLEP as this prevails.

Figure 11: Distance from the rear boundary to the rail corridor (courtesy of Nearmaps)

DEVELOPER CONTRIBUTIONS

114. If considered for approval the proposed development would require payment of developer contributions under Section 7.11 of the Environmental Planning and Assessment Act 1979. If the development is approved a condition outlining the required contributions will need to be imposed.

IMPACTS

Natural Environment

115. The proposed development is unlikely to result in adverse impacts to the natural environment as the proposal does not request the removal of any significant or important existing trees, vegetation or natural features.

Built Environment

116. The proposed built form and design is considered to be out of keeping with the desired future character for development along the northern side of Railway Parade being the B2 Local Centre zoned land. The narrowness of the site width restricts the full potential of the development to satisfy the objectives of the Local Centre zone, which focuses on providing a range of retail, business and community uses and encourage employment opportunities in accessible locations.

117. The proposed building will have a poor relationship to its immediately adjoining eastern neighbour, 85-87 Railway Parade (a shop top housing development currently under construction) which has established a built form precedent for redevelopment within the streetscape of the B2 zoned land. The siting of the building is not in keeping with both adjoining properties and the lack of setbacks to the west will create a large and dominating form when viewed from the dwelling house at 93 Railway Parade.

Social Impact

118. No adverse social impacts have been identified as part of the assessment. The additional dwellings, in principle, will cater for a cross-section of the community and could assist with providing for more housing in the area.

Economic Impact

119. The failure to provide a large or functional commercial/retail component of the development will adversely affect the future economic viability of this part of the B2 zoned land and the Mortdale Town Centre. The proposal does not satisfy the objectives of the B2 zone which focus on the ability of development in this up-zoned precinct to promote and encourage a wide diversity of business and employment generating uses. The developments lacks emphasis on the integration of appropriate business uses and this will impact on the long term economic impact in this locality as the provision of a small tokenistic ground floor retail shop restricts the overall intent and purpose of a Town Centre and the desire to create a mixture of land uses on the ground floor that can cater for a variety of commercial uses. The small scale nature of the retail component limits its useability and overall functionality of this space is restricted.

Suitability of the site

120. The site is zoned B2 – Local Centre. The proposal is a permissible form of development in this zone. Although the site is suitable for this form of development the siting and built form as proposed is not considered to be an appropriate urban design and planning outcome given the site width restrictions, considerations, context and nature of adjoining developments.

SUBMISSIONS AND THE PUBLIC INTEREST

121. The application was neighbour notified in accordance with Kogarah DCP 2013 for a period of 14 days. A total of fourteen (14) individual submissions were received and one (1) submission containing twelve (12) signatures. In summary the following concerns have been raised by the submitters.

· Inappropriate bulk and scale

122. Comment: The bulk and scale of any development is regulated and dictated largely by the height and FSR/density controls. In this case the proposal generally satisfies the two key development standards being height and FSR, however bulk is also generated by the design, form and siting of the building.

123. In this case the bulk of the building is concentrated at the front of the site and there are limited if no side setbacks. This creates a visually bulky building when travelling up or down Railway Parade. The lack of side setbacks and physical separation (particularly along the western side) will create a visually dominating and bulky development.

124. In this case the front section of the building which is designed with nil side setbacks will be visually dominating and will have a poor relationship to both adjoining properties especially to 93 Railway Parade.

· Adverse Traffic impacts being generated

125. Comment: The application was accompanied by a traffic and parking assessment prepared by Motion Traffic Engineers which concluded that the number of parking spaces provided satisfies SEPP 65 provisions and that in terms of traffic generation “the proposed development is a modest trip generator for the weekday AM and PM period and that the additional trips generated by the development can be accommodated at the nearby intersections and road network without noticeably affecting intersection performance, delays or queues.”

126. It is noted that the B2 zoning envisaged and requires development of a scale and form of that proposed and therefore the vehicle movements this development will create. The access arrangements for vehicles is considered unsatisfactory and is discussed in details throughout this report.

· Lack of 3m side setback to 93 Railway Parade and the proposed nil setback is unacceptable.

127. Comment: The KDCP does encourage a minimum 3m side setback if the property adjoins a residential zone or a residential allotment. 93 Railway Parade is a residential dwelling house and the lack of side setback will create a very bulky and visually dominating building when viewed from 93 Railway Parade and the lack of setback and separation will increase its dominance. 85-87 Railway Parade is setback 3m from the western side to cater for this planning control as currently the subject site comprises of two low scale semi-detached dwelling houses. It is considered this development needs to comply with this setback control.

· Adverse overshadowing impacts

128. Comment: Overshadowing generated by the development is acknowledged, however the resultant impacts is the adjoining allotments receive the minimum solar access provisions required by the KDCP, as the immediately adjoining properties will all receive a minimum of 3 hours of sunlight during the day in midwinter.

129. The development will overshadow itself and the central landscaped courtyards will be in shadow throughout the day. This is a poor planning outcome and will adversely affect the internal amenity of spaces within the development.

· Lack of landscaping

130. Comment: The development provides for a compliant amount of landscaped area and in particular communal open space which is largely catered for on the roof. The deep soil area at the rear could be better treated and include larger trees that would assist in screening and creating a more prominent green buffer. This could be addressed or improved by conditions if approval was recommended.

131. The central area of landscaping is compromised as it is largely in shadow all day and the western area comprises the OSD tank therefore limiting its potential use and functionality.

132. The deep soil area at the rear is essentially exclusive to the ground floor rear apartments No.1.03 and 1.04 as this space can only be accessed via the raised terraces. The arrangement and access to the areas of landscaping on the ground and Level 1 are restricted and compromised by their size, siting, location and orientation.

· The site frontage is too narrow and the site does not satisfy the minimum site area requirement of 1,000sqm.

Comment: There is no minimum site area requirement for developments within the B2 Local Centre zone. The minimum 1,000sqm site requirement and minimum site width is for an RFB in a medium density zone.

133. Approvals at 85-87 Railway Parade and 1 Ellen Subway have through the approval established a general precedent for the type and form of development (shop top housing) that is envisaged in the area. Both these sites have site areas of over 1,000sqm and widths of over 30m. This creates a large, integrated development that provide a generous amount of retail/commercial spaces on the ground floor and due to the site width allows for a wider driveway access and larger main entry and lobby. These developments have established the need to have wider sites in this area as the redevelopment of a small, narrow site will compromise the provision of retail spaces, create a poor planning and urban design outcome as there will be a series of driveways puncturing the street frontage which is undesirable.

· Inadequate provision of car parking. Twenty-three (23) car parking spaces were provided but twenty-nine (29) spaces should be provided.

134. Comment: The amount of car parking spaces provided is deficient by two (2) spaces when calculated against the car parking requirements within the KDCP however given the proximity of the site to the Mortdale Train Station and its overall accessibility the provisions of the RMS Traffic Generating Guidelines need to be complied with in accordance with the provisions of SEPP 65. The DCP is overridden in this situation.

135. The proposal provides more parking than is required by the RMS Traffic Generating Guidelines and is therefore compliant.

· Adverse impact on the Heritage Item (Railway Bridge across Ellen Street).

136. Comment: This issue has been addressed earlier as part of the assessment. The proposal is not considered to be within the visual curtilage of the Heritage Item and will be largely screened by the 6-7 storey developments that have been approved at 1 Ellen Subway and 85-87 Railway Parade. The development given its physical separation is not considered to impact on the structural integrity of the rail corridor or the heritage items.

· Exceeds the height limit.

137. Comment: The building exceeds the height limit but only by the lift overrun. A Clause 4.6 Statement has been submitted with the application and has been assessed as part of this assessment. The non-compliance is considered to be minor and given the centralised location of the lift it is not considered to be a visually dominating element and will be in keeping with the objectives of the height standard and objectives of the zone. Therefore the Clause 4.6 Statement is considered to be well-founded.

· Out of scale and character with adjoining properties.

138. Comment: The development if approved will be out of scale with the adjoining low scale residential dwellings to the south west however these properties are likely to be redeveloped in the future as they are also located within the B2 Local Centre zone and the height and FSR of 21m and 2.5:1 is permitted.

REFERRALS

Council Referrals

Development Engineer

139. The application was referred to Council’s Engineers for comments. No objection was raised in respect to the design of the proposed stormwater/drainage plan subject to conditions if the application was to be supported.

Traffic Engineer

140. The application was referred to Council’s Traffic Engineer for comment. A series of issues were raised by the Traffic Engineer as discussed in the car parking and traffic section of the report above. The main issue is the narrow width of the driveway (3.3m width) which would pose conflicts in vehicles entering and exiting the site, potential queuing along Railway Parade for vehicles entering the site and poses poor pedestrian sight distances for drivers leaving the site. The application is not supported.

Environmental Health Officer

141. Council’s Environmental Health Officer has raised no objection subject to conditions of consent being attached if approval is granted.

External Referrals

Sydney Trains

142. The application was referred to Sydney Trains in accordance with Clause 86 of State Environmental Planning Policy (Infrastructure) 2007. To date no formal concurrence has been received and concurrence should be able to be assumed as more than 21 days from the date of the referral has occurred.

CONCLUSION

143. The proposal has been assessed using the matters for consideration listed in Section 4.15 of the Environmental Planning and Assessment Act 1979. The proposal is considered to be an unreasonable urban design and built form outcome for the site.

144. The bulk, scale and siting of the building will have adverse amenity impacts on the dwelling house at 93 Railway Parade. The presentation of the building to the street will establish an undesirable precedent in the streetscape due to the lack of appropriate side setbacks and will have a poor relationship to the development at 85-87 Railway Parade (shop top housing development currently under construction). The proposal also fails to satisfy the objectives of the B2 zone which encourages commercial, employment and business generating uses as this precinct is an extension of the Mortdale Town Centre.

DETERMINATION AND STATEMENT OF REASONS

Statement of Reasons

145. The reasons for this recommendation are:

· The proposed development fails to satisfy the objectives of the B2 Local Centre zone of Kogarah Local Environmental Plan which emphasis the need to create a vibrant and active commercial/retail environment.

· The proposed built form, scale and siting of the building will adversely affect the character of the streetscape and will be inconsistent with development form that has been approved within this precinct.

· The bulk and mass of the building when read and interpreted from the street will be visually dominating and will not sit comfortably or create a sympathetic relationship with lower scale residential development to west namely 93 Railway Parade.

· The lack of side setback and non-compliance with the Kogarah Development Control Plan along the western side of the building will produce an insufficient separation distance to the dwelling at 93 Railway Parade.

· The proposal fails to provide a loading bay and given the retail/commercial nature of the zone this element is a basic operational requirement.

· The proposal is considered to establish an undesirable precedent in the area and will not be in the public interest.

· The driveway width proposed of 3.3m is considered to be insufficient and will create potential adverse vehicular conflicts between cars leaving and entering the site.

146. In consideration of the aforementioned reasons, the proposed development is recommended for refusal.

Determination

147. THAT pursuant to Section 4.16(1)(b) of the Environmental Planning and Assessment Act 1979 (as amended) the Georges Rover Local Planning Panel refuse development consent to Development Application DA2018/0439 for the demolition of existing structures and the construction of a part six, part seven storey shop top housing development including one retail tenancy on the ground floor, nineteen (19) apartments at upper levels and basement parking for thirty-one (31) vehicles including communal open space on the roof on Lot 1 and 2, DP 964242, and known as 89-91 Railway Parade, Mortdale, for the following reasons:

1. The proposed development fails to satisfy the provisions of Section 4.15 (1)(a)(i) of the Environmental Planning and Assessment Act 1979, in that the proposal fails to meet the objectives of Clause 2.3 of the Kogarah Local Environmental Plan 2012. The development is located in the B2 Local Centre zone and the proportion of the retail component on the ground floor of the development is deficient in size (comprising of only 6% of the GFA) and will not adequately satisfy the key objectives of the zone which aim to create a development that will “provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area and to encourage employment opportunities in accessible locations.” The site is located in a business zone and is considered to be developed as an extension of the Mortdale Town Centre and as such emphasis for redevelopment is to create a viable and functional town centre with the integration of a variety of business uses. The development fails to fulfil the intent and purpose of the zone.

2. The proposed development fails to satisfy the provisions of Section 4.15 (1)(b) of the Environmental Planning and Assessment Act 1979, in that the proposed design and built form will establish and undesirable precedent for future development in the street and zone and will have a poor relationship to the siting and setbacks of the approved mixed use development at 85-87 Railway Parade, Mortdale (currently under construction). The proposal is not considered to be in keeping or in character with the desired future character of development within this B2 precinct. The building in its current form will be a bulky and visually dominating element when viewed from the street as the building setback at the front is not in keeping with 85-87 Railway Parade, Mortdale.

3. The proposed development fails to satisfy the provisions of Section 4.15 (1)(a)(i) of the Environmental Planning and Assessment Act 1979, in that the proposal fails to comply with the control, objectives, purpose and intent of Part 3G (Separation distances) of the Apartment Design Guide as part of State Environmental Planning Policy No.65 - Design Quality of Residential Flat Development as the development fails to provide for adequate side setbacks and physical separation distances and does not satisfy the intent of the control which is to provide for an equitable sharing of setbacks and provide acceptable levels of physical separation between buildings to reduce potential amenity impacts for occupants and neighbours. The lack of physical separation along the western side will adversely affect the amenity of No.93 Railway Parade by accentuating the visual bulk and scale of the development.

4. The proposed development fails to satisfy the provisions of Section 4.15 (1)(a)(iii) of the Environmental Planning and Assessment Act 1979, in that the proposal fails to comply with Part D1, Section 3.5 (Setbacks) of the Kogarah Development Control Plan in that the building does not provide for a minimum 3m side setback where it adjoins the residential dwelling house at 93 Railway Parade, Mortdale. The lack of setback, separation and the proposed scale and bulk of the building will have a detrimental and adverse amenity and visual impact onto this immediately adjoining property.

5. The proposed development fails to satisfy the provisions of Section 4.15 (1)(a)(iii) of the Environmental Planning and Assessment Act 1979, in that the proposal fails to comply with Part B4, Section 5 (Loading Requirements) of the Kogarah Development Control Plan in that the building does not provide for a Loading Bay to service the commercial component.

6. The proposed development fails to satisfy the provisions of Section 4.15 (1)(a)(iii) of the Environmental Planning and Assessment Act 1979, in that the development fails to satisfy the provisions of Part B4, Section 4 of the Kogarah Development Control Plan 2012 in respect to vehicular access and parking due to the narrow site width which creates a poorly defined main entry point and the narrow width compromises the width of the driveway which is only 3.3m. This narrow access is insufficient for a development of this scale and density. The narrow width of the driveway will potentially cause conflicts between vehicles entering and leaving the site and create queuing on the street. Pedestrian sight distances are also comprised due to the driveway width. In this respect the proposal fails to satisfy the requirements of AS2890 in respect to vehicular access arrangements for the site.

7. The proposed development fails to satisfy the provisions of Section 4.15 (1)(a)(iii) of the Environmental Planning and Assessment Act 1979, in that the development fails to satisfy the provisions of Part B5, Section 2 (Waste and Recycling Requirements) of the Kogarah Development Control Plan 2012 in respect to the design and size of the waste storage area. This area does not cater for a designated waste area associated with the commercial component of the development. The current bin storage area will need to be reconfigured to include space allocation for the commercial component in conjunction with the residential bin storage.

8. The proposed development fails to satisfy the provisions of Section 4.15 (1)(c) of the Environmental Planning and Assessment Act 1979, in respect to sites suitability to accommodate this scale and form of development. The narrow site width will establish an undesirable built form precedent for future development in the precinct. Whilst this development does not require an electrical substation, adjoining single sites may require this element in the future rendering the site’s largely undevelopable. Site consolidation and amalgamation is required in this case to create a more viable, attractive and integrated development that will result in a better streetscape outcome for the future.

9. The proposed development fails to satisfy the provisions of Section 4.15 (1)(b) of the Environmental Planning and Assessment Act 1979, in that the Applicant has failed to provide enough evidence to justify that the adjoining site at No.93 Railway Parade cannot be purchased and the owner is not open to selling the site for a genuine market value.

10. The proposal fails to satisfy the provisions of Section 4.15 (1)(b) in that the proposal will have an adverse economic impact in the longer term for the locality due to the inappropriately sized commercial component of the development and the failure to deliver the growth in employment land in this business zone.

11. The proposal fails to satisfy the provisions of Section 4.15 (1)(b) in that the development is not considered to be suitable for this site given the site’s narrow width which restricts the potential to create a viable and functional ground floor commercial uses, an adequately sized driveway access and a built form that is more conducive to the business zone and the design is not considered to be consistent and sympathetic with the built form of recently approved mixed use developments within the precinct.

12. The proposed development fails to satisfy the provisions of Section 4.15 (1)(e) of the Environmental Planning and Assessment Act 1979, in that the proposed development is not in the public interest as it does not satisfy the objectives of the B2 Local Centre zone and will establish an undesirable urban design and planning precedent for the site and immediate area due to the form and siting of the building.

ATTACHMENTS

Attachment ⇩1	Site plan - 89-91 Railway Parade Mortdale
Attachment ⇩2	South Elevation - 89-91 Railway Parade Mortdale
Attachment ⇩3	East elevation - 89-91 Railway Parade Mortdale
Attachment ⇩4	West elevation - 89-91 Railway Parade Mortdale

Meeting:	Georges River Local Planning Panel (LPP)
Date:	Thursday, 12 December 2019
Time:	4.00pm
Venue:	Council Chambers, Civic Centre, Hurstville
Panel Members:	Paul Vergotis (Chairperson) Michael Leavey (Expert Panel Member) Helen Deegan (Expert Panel Member) Cameron Jones (Community Represntative)

Clause	Standard	Proposed	Complies
4.3 – Height of Buildings	9m as identified on Height of Buildings Map	Maximum 4.2m	Yes
4.4 – Floor Space Ratio	0.55:1 as identified on Floor Space Ratio Map	0.36:1	Yes
4.4A - Exceptions to floor space ratio for residential accommodation in Zone R2	Site area <650sqm: 0.55:1	Existing dwelling = 108.89sqm Proposed dwelling = 59sqm Total = 168.89sqm (0.36:1)	Yes
5.4 (9) Secondary dwellings	If development for the purposes of a secondary dwelling is permitted under this Plan, the total floor area of the dwelling (excluding any area used for parking) must not exceed whichever of the following is the greater: (a) 60 square metres, (b) 13% of the total floor area of the principal dwelling.	The proposed dwelling is 59sqm internally.	Yes. SEPP (Affordable Rental Housing) 2009 takes precedence - refer to the assessment table earlier in this report.
6.2 – Earthworks	To ensure that earthworks do not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land.	Minimal excavation is proposed commensurate with what would be expected for a development of this type and scale; however the excavation for the piers of the proposed dwelling will adversely impact on the health of the existing trees on the site, one being a critically endangered species and is not supported.	No
6.3 – Flood Planning	Requires assessment to minimise the flood risk to life and property associated with the use of land; to allow development on land that is compatible with the land’s flood hazard, taking into account projected changes as a result of climate change; and to avoid significant adverse impacts on flood behaviour and the environment.	Council’s Engineer does not raise any concerns with the proposal in relation to flooding impacts. As a result if the application was supported than conditions would be imposed.	Yes

Applicable DCP Controls	Standards	Proposal		Complies
Section 1 Design Requirements
1.2.1 Floor space Requirements	Refer to comments in KLEP 2012 and SEPP (Affordable Rental Housing) 2009
1.2.2 Building Heights	Detached secondary dwelling: 2.7m to the underside of the ceiling 3.5m overall building height	Maximum 3.4m Maximum 4.2m		No – refer to comments below No – refer to comments below
Comments on building height The proposed secondary dwelling has a maximum ceiling height of 3.4m (exceeds maximum height permitted by the DCP by 0.7m) and an overall height of 4.2m (exceeds the maximum height permitted by the DCP by 0.7m). The height of the proposed dwelling in DA2019/0158 was 4.7m, and was a reason for refusal of the application. It is acknowledged that the site slopes from the rear boundary towards the street, however in conjunction with the rear setback non-compliance and the tree impacts discussed earlier in this report, the site is unsuitable for the proposal and the height of the secondary dwelling is not supported.
1.2.4.2 Front Setbacks	Not applicable - the proposed dwelling is located in the rear yard.
1.2.4.3 Side and Rear Setbacks	Secondary dwelling (detached from primary dwelling): 3m	0.9m to 1.8m	No – refer to comments below
Comments on the rear setback The proposal fails to provide the required 3m setback to the rear boundary. This non-compliance was a reason for refusal in the Development Application and the plans submitted with the Review application propose the same non-compliant rear setback of between 0.9m and 1.8m. The proposed setback results in an undersized area of deep soil which is insufficient to establish canopy trees. Together with the impact on existing trees and height non-compliance, the site is unsuitable for the proposed development.
1.2.5 Fenestration and External Materials	Not applicable - the proposed secondary dwelling is located in the rear yard.
1.2.6 Street edge	Not applicable - the proposed dwelling is located in the rear yard.
1.3 Open Space	(1) 15% of the site area must be deep soil landscaped area. (2) Private open space should be adjacent to and visible from the main living and/or dining rooms and be accessible from those areas. (3) Development should take advantage of opportunities to provide north facing private open space to achieve comfortable year round use. (4) Where soil and drainage conditions are suitable, unpaved or unsealed landscaped areas should be maximised and designed to facilitate on site infiltration of stormwater. (5) Existing significant trees and vegetation must be incorporated into proposed landscape treatment.	29% N/A to a secondary dwelling. N/A to a secondary dwelling. No additional hard stand areas are proposed. The proposal seeks consent for the removal/transplantation of existing trees in the rear yard, which is not supported – refer to discussion earlier in the report.	Yes N/A N/A Yes No
1.4 Vehicular access, parking and circulation	Not applicable – no additional parking is permitted for secondary dwellings.
1.5.1 Visual Privacy	(1) Windows from active rooms are to be offset between adjacent dwellings so as to avoid direct overlooking onto neighbouring windows.	Windows are suitably located in relation to the adjoining properties.	Yes
1.6 Solar Access	Not applicable – the proposed dwelling is single storey
Section 2.2 Secondary Dwellings
(3) Where it is proposed to create a detached secondary dwelling or an attached secondary dwelling by way of extensions that increase the footprint of an existing dwelling, such extensions are permitted at ground level only, to the rear of the principal dwelling. In this regard, the development must not be visible from the principal street frontage and must not result in the gross floor space ratio and height exceeding the maximum permitted for a single dwelling.		The proposed secondary dwelling is detached from the primary dwelling and located in the rear yard. The dwelling will not be visible from the street and does not result in the maximum FSR permitted for a dwelling house being exceeded.	Yes Yes
(4) Detached secondary dwellings must be setback from the rear boundary a minimum of 3m.		The proposed dwelling is setback between 0.9m and 1.8m from the rear boundary.	No – refer to discussion in rear setback section above.
(5) Secondary dwellings must not have additional on-site car parking.		No additional parking is proposed.	Yes
(6) Detached secondary dwellings on corner sites must not have a separate street frontage (including pedestrian access ways and driveways).		The site is not located on a corner.	N/A
(7) For properties with rear lane access, a detached secondary dwelling may present to, and be visible from the rear lane, but must not include additional parking or driveway access from the lane.		The site does not have rear lane access.	N/A
(8) A secondary dwelling located at the rear of a site must include deep soil planting within the rear setback, including trees that contribute to the tree canopy.		The proposed dwelling is setback between 0.9m and 1.8m from the rear boundary, and 0.9m from each side boundary. The proposed location does not allow for planting of canopy trees within a deep soil area at the rear of the site.	No – refer to discussion in rear setback section above.

LPP Report No	LPP060-19	Development Application No	REV2019/0012
Site Address & Ward Locality	38 Hillcrest Avenue Hurstville Hurstville Ward
Proposed Development	Review of Determination of DA2019/0158 - Construction of a secondary dwelling and removal of trees
Owners	Zhangy Investments Pty Ltd
Applicant	Master Granny Flats
Planner/Architect	N/A
Date Of Lodgement	18/09/2019
Submissions	None
Cost of Works	$185,000.00
Local Planning Panel Criteria	The application is referred to the Georges River Local Planning Panel (LPP) as the original application was refused under delegation by the General Manager, pursuant to Section 8.3(4)(a) of the Environmental Planning and Assessment Act, 1979 (EPAA) as it is considered the LPP is exercising consent functions on behalf of Council as provided for in s4.8(2) of the Environmental Planning and Assessment Act, 1979.
List of all relevant s.4.15 matters (formerly s79C(1)(a))	Greater Metropolitan Regional Environmental Plan No 2 - Georges River Catchment, State Environmental Planning Policy No 55 - Remediation of Land, State Environmental Planning Policy (Affordable Rental Housing) 2009, State Environmental Planning Policy (Infrastructure) 2007, State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017, Draft Environment State Environmental Planning Policy, Draft Remediation of Land State Environmental Planning Policy, Kogarah Local Environmental Plan 2012, Kogarah Development Control Plan 2013
List all documents submitted with this report for the Panel’s consideration	Site Plan Elevation and Section Plans Statement of Environmental Effects
Report prepared by	Senior Development Assessment Planner

State Environmental Planning Policy	Complies
State Environmental Planning Policy (Affordable Rental Housing) 2009	Yes
Greater Metropolitan Regional Environmental Plan No 2 – Georges River Catchment	Yes
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004	Yes
State Environmental Planning Policy No 55 - Remediation of Land	Yes
State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017	Yes
State Environmental Planning Policy (Infrastructure) 2007	Yes

Attachment ⇩1	Site Plan - 38 Hillcrest Avenue Hurstville
Attachment ⇩2	Elevations - 38 Hillcrest Avenue Hurstville