Item 8.3 - Attachment 1

Section 79c Report

 

 

Parramatta City Council

File No:

DA/2862/2002/B

ASSESSMENT REPORT – SECTION 96 MODIFICATION

Environmental Planning & Assessment Act 1979

 

 

SUMMARY

 

Application details

 

DA No:                                                           DA/2862/2002/B

 

Assessment officer:                          Lina Dababneh

 

Property:                                                        LOT 33 DP 7727, 10-12 Bowden Street, NORTH PARRAMATTA  NSW  2151

 

Proposal:                                                       Section 96(2) application to modify a development consent for the construction of 9 townhouses. The application seeks approval to amend the development consent in accordance with the as-built finished floor levels. The ground floor levels are up to 970mm higher than the approved floor levels. The ridge height of the front row has increased by 970mm and the rear row by 750mm.

 

Date of receipt:                                             31-Aug-2010

 

Applicant:                                                       Xing Yue International Trading (Aus) Pty Ltd

 

Owner:                                                            Xing Yue International Trading (Aus) Pty Ltd

 

Submissions received:                                 Three submissions were received.

 

Is the property owned by a Council

employee or Councillor:                               No                              

 

Council application:                                      Yes

 

Issues:                                                            Potential for overlooking, bulk and scale, streetscape presentation, floor to ceiling height.

 

Recommendation:                                        APPROVAL

 

Legislative requirements

           

Zoning                                                            2B Residential

 

Draft LEP 2010 Zoning:                               R3 Medium Density Residential

 

Permissible under:                                        Parramatta Local Environmental Plan 2001

 

Relevant legislation/policies:                       Parramatta Development Control   Plan 2001; Parramatta Draft LEP 2010; SREP No.28

 

Variations:                                                     Maximum height (storeys); floor to ceiling height.

 

Integrated development:                               No

 

Designated development:                            No

 

Crown development:                                     No

 

The site

 

Site Area:                                                       1626m²

 

Easements/rights of way:                             No

 

Heritage item:                                                Yes

 

In the vicinity of a heritage item:                  Yes

 

Heritage conservation area:                        Yes

 

Site History:                                                   Yes

 

DA/2862/2002 for demolition, removal of 11 trees and the erection of five x 3 bedroom and four x 2 bedroom town houses over basement car parking, was approved at a Council meeting on 19 May 2003.

 

DA/2862/2002/A for a section 96(2) modification to fill in a void area to provide for a third bedroom to units 7 and 8 which results in seven x 3 bedroom units and two x 2 bedrooms units, was granted consent on 26 August 2003.  It is noted that the modifications approved under this application also include a modified design to the layout of the footpath and ground floor verandah which provide access to the front row of units. 

 

CC/305/2008 for demolition, tree removal and the erection of 9 town houses over basement car parking, was issued by Council on 15 August 2008.

 

Site inspection undertaken by Council’s Certification Team to hand over Notice Of Intention for unauthorised works on 24 June 2009.

 

A stop work order was issued by Council on 30 September 2009.

 

BC/95/2010 to regulate the unauthorised as built works, namely the basement floor levels (970mm higher than the approved floor levels, and the ridge height of the front row by 650mm and the rear row by 750mm), is currently under assessment.

 

A building Certificate is required in respect of the unauthorised works which also form part of DA/2862/2002/B as insufficient inspections were called by the applicant during construction and therefore an occupation certificate cannot be issued as an amended CC is not possible.

 

DA history 

 

31 August 2010                                             Section 96 Modification Application lodged.

 

2 September 2010                                       Letter sent to applicant requesting the payment of relevant application fees.

 

9 September – 23 September 2010          Application notified to adjoining properties for a period of 14 days.

 

13 September 2010                                     Additional fees paid.           

 

14 October 2010                                           Council’s Construction Team requested to provide a written submission regarding the unauthorised as-built finished floor levels, roof ridge height.

 

18 October 2010                                           Application taken to SORT meeting for discussion. It was requested that the applicant be asked to provide a solution to mitigate the impact of bulk and scale as a result of the unauthorised levels, particularly to the street.

 

9 November 2010                                         Meeting held with applicant at Council.

 

10 November 2010                                       Additional information submitted to Council including an amended landscape plan and front elevation plan.

 

15 November 2010                                       Amended plans taken to SORT meeting for discussion.

 

 

 

SECTION 96 ASSESSMENT

 

SITE & SURROUNDS

 

The site is known as 10-12 Bowden Street, North Parramatta (Lot 33 in DP 7727) and has a street frontage of 30.48 metres and a depth of 53.34 metres, with a total site area of 1626m². The site has a north-south slope (towards the street), with an overall fall of approximately 3 metres.

 

The site currently contains the nearly completed development comprising 9 townhouses (two storeys with attic) over a basement level car park.

 

Surrounding development is characterised by a mixture of residential development consisting of more recently developed townhouses and single dwellings.

 

 

Image 1: subject site.

 

 

Image 2: This image shows the opportunity for overlooking from the site into the rear courtyard of the adjoining property located immediately to the east of the site.

 

 

 

Image 3: Approved (DA/1410/2003) townhouse development at 14-16 Bowden Street (immediately to the east of the site).

 

PROPOSED MODIFICATION 

 

The application seeks approval to modify DA/2862/2002 approved for demolition, removal of 11 trees and the erection of five x 3 bedroom and four x 2 bedroom town houses over basement car parking, which was approved at a Council meeting on 19 May 2003.

 

Details of the works are as follows:

 

As-built works

 

·    The basement floor levels have been built up to 970mm higher than the approved floor levels to the front row of units and to a maximum of 700mm higher than the approved floor levels to the rear row of units.

·    The ground floor levels have increased by a maximum of 1.21 metres.

·    The ridge height of the front row of units has increased by 970mm and the rear row of units by 750mm.

·    The deletion of Condition No. 59 of the orginial consent requiring the basement level to have a minimum floor to ceiling height of 2.5 metres. The as-built minimum floor to ceiling height is 2.0 metres for a portion of the basement car park.

 

Proposed Works

 

·    Amended landscaping in the form of additional planter boxes between each set of stairs which provide access to the front row of units.

·    Reconfiguration of the staircase providing access from the street into each unit within the front row, to provide for a landing which faces the street.

 

 

 

PERMISSIBILITY

 

The proposed use is defined as “multi-unit housing” under Parramatta LEP 2001.

 

The definition states:

multi unit housing means three or more dwellings on the same parcel of land where each dwelling has an individual entrance and direct private access to private open space at natural ground level for the exclusive use of the occupants of the dwelling, but does not include any other form of dwellings elsewhere specifically defined in this plan.

 

Despite the increased finished floor levels, direct access into the Private Open Space area which is located at natural ground level for the exclusive use of the occupants of each unit is achieved.

 

The proposal satisfies the definition of “multi-unit housing” and is permissible under the 2B Residential zoning applying to the land.

 

 

REFERRALS

 

Construction Team

 

The application was referred to Council’s Construction Team who were requested to discuss the history of the approved development with respect to the unauthorised as-built works, given that Council is the elected Certifying Authority.

 

The following response was provided:

 

The following key dates relating to the relevant Construction Certificate being CC/305/2008 are as follows;

 

·    14/8/2008 – Construction Certificate issued by Parramatta City Council.

·    29/10/2008 – Construction Team contacted for a footing inspection to be carried out.

·    24/6/2009 – Site inspection to hand over Notice Of Intention for unauthorised works.   

·    30/9/2009 - A stop work order was issued by Council.

 

In conclusion, it can be seen from the above dates that Council’s Construction Team were not called for a basement slab inspection until the frame and Roof were constructed. It is noted that the builder which commenced the development up to this stage is being pursued by the Department of fair Trading in the Supreme Court.

 

Comment:

 

Given that Council’s Construction Team, being the elected Certifying Authority, were contacted to undertake a first inspection after the construction of the slab, frame and roof was completed; Council was unable to cease works after the basement level was built not in accordance with the approved levels as indicated on the DA plans.  Similarly, given that inspections were not undertaken at each stage of the development as required, works were not able to be ceased by Council prior to the construction of the remainder of the development.   

 

As noted in the above timeline, a Stop Work Order was issued on 30 September 2009, being three months following the issue of a Notice of Intention which was handed over at a site inspection on 24 June 2009.

 

Urban Designer

 

Council’s Urban Designer was consulted to discuss potential measures which could be implemented to mitigate the impact of bulk & scale of the built development, particularly towards the street.

 

Council’s Urban Designer considers that the proposed landscaping along the flush wall between the staircase within the ground floor of each unit within the front row in addition to the proposed staircase reconfiguration to provide for a landing which faces the street, will be sufficient to address the issues raised with respect to excessive bulk and scale due to the increased Finished Floor Levels.

 

It is considered that recommendations to improve the design of the development would be limited given that the building has been completed.

 

Comment:

 

The additional landscaping and stair reconfiguration which provides access to the ground floor of unit within the front row will be imposed by conditions of consent.

 

Landscape Officer

 

Council’s Landscape Officer was consulted with respect to the landscaping proposed to reduce the impact of bulk and scale of the development towards the street which comprises planter boxes located along the flush wall between the staircase of each unit within the front row.

 

The proposed trees and shrubs include Callery Pear tree, Japonica, Cosmic Bark Tree, Dwarf Indian Hawthorne and Lily Pilly.

 

Council’s Landscape Officer is satisfied that the proposed landscaping will be reasonably dense and grow to a height of approximately 1 metre, which is considered sufficient to camouflage the flush wall between the stair case of each unit within the front row.

 

Comment:

 

Given that Council’s Tree Management officer is of the opinion that the proposed landscaping will be of a dense nature and grow to a height of 1 metre, it is considered that the proposed landscaping will sufficiently camouflage the visually dominant flush blank walls between the entry stairs of each ground floor unit facing the street.

 

A condition will be recommended requiring the maintenance of landscaping for a minimum two year period.

 

 

PUBLIC CONSULTATION

 

In accordance with Council’s Notification DCP, owners and occupiers of surrounding properties, were given notice of the application for a 14 day period between 9 September and 23 September 2010. In response, three submissions were received.

 

The issues raised within those submissions are addressed below.

 

Concerns are raised that the development will reduce the economic value of adjoining properties.

 

The economic value of property is not a matter of consideration under Section 79c of the Environmental Planning and Assessment Act, 1979.

 

Concerns are raised that the building will set precedence for future development to be built not in accordance with Council’s requirements.

 

Whilst it is noted that the development has not been built in accordance with the approved Development Application, Council has required the applicant to modify the appearance of the front façade of the building to minimise the impact caused by the unauthorised finished floor levels. The changes include additional landscaping to the front of the building to reduce the impact of the raised flush walls between the stairs of the ground floor of each unit facing the street.  In addition, the design of the stairs to each front row unit has been reconfigured to ensure that the stairs step down towards the street rather than step down to the ground in a sideways direction, which currently exacerbates the bulk and scale of the development. It is considered that these changes will reduce the impact of excessive bulk and scale caused by the increased finished floor levels.

 

Concerns are raised regarding the increased potential for overlooking to adjoining properties due to the increased as-built levels.

 

An inspection of the site revealed that the increased finished floor levels will allow for direct overlooking into the courtyard of the adjoining property located immediately to the east of the site. Accordingly, a condition will be placed in the consent requiring 600mm of lattice screening to be surmounted on top of the dividing fence along the eastern elevation of the site to minimise the potential for overlooking into the courtyard of the adjoining property.

 

Not withstanding the above, Council’s Development Control Team will be notified of the unauthorised works for appropriate action.

 

It is not considered that the increase in building height will provide for direct unacceptable overlooking into the Private Open Space area and windows of adjoining properties along the northern (rear) or western (side) elevation.

 

The building is visually undesirable given the excessive bulk and scale of the building as a result of the increased height of the building.

 

The applicant was requested to submit amended plans to modify the appearance of excessive bulk and scale resulting from the increased finished floor levels, particularly towards the street. The changes include additional landscaping in the form of planter boxes containing dense landscaping to the front of the building to reduce the impact of the raised flush walls between the stairs of each unit facing the street.  In addition, the design of the stairs to each unit along the front row has been reconfigured to ensure that the stairs are orientated to face the street rather than step down or up in a sideward direction. It is considered that these changes will reduce the visual impact of excessive bulk and scale caused by the increased finished floor levels.

 

Concerns are raised regarding the maintenance of the strip of land located between the constructed 1.5 metre high paling courtyard fence and the portion of the dividing fence between the rear boundary which adjoins the objector’s property at 83 Isabella Street.

 

It is the responsibility of the property owner to carry out maintenance work between the courtyard fence and dividing fence.

 

Issue

Submissions

  Comments

Yes

No

N/A

Amended Plans:-

Have amended plans been submitted since the original application was made?

x

 

 

 

Summary of amendments made

x

 

 

Amendments include proposed landscaping in the form of planter boxes along the street elevation and the reconfiguration of each staircase which provides access to the ground floor of each unit within the front row.

Were amended plans re-advertised or re-notified?

 

x

 

No, the amended plans were not notified.

Reason why they were/were not re-advertised or re-notified?

x

 

 

The changes were substantially the same when viewed from the street or adjoining properties. The impact of the development from the street was decreased as a result of the amendments (reduced impact of bulk and scale).

 

SECTION 96 MATTERS OF CONSIDERATION

 

Has the consent lapsed?             Yes

 

 

Section 96(2) Modification

 

Substantially the same development

The proposed development to be modified is considered to be substantially the same development as that to which the original development consent relates.

 

The development to which the consent as modified relates is substantially the same

development as the development for which consent was originally granted given

that, the proposed development as amended is still for 9 townhouse being two

storeys with attic space, over basement car parking and Strata subdivision. The

proposed modification of the original development consent raises additional issues in

respect of compliance with Council’s policies, which are discussed below (see 79c

assessment part of this report).

 

Notification & Submissions

The application has been notified in accordance with Council’s Notification DCP.  All submissions received have been considered in the assessment of the application. This issue has been discussed elsewhere within this report.

 

Section 79C Assessment

The proposed modifications have been assessed in accordance with the matters for consideration under Section 79C of the EP&A Act, 1979.

 

Proposed modification

Compliance with SREP – car parking

 

Compliance with PLEP and  PDCP 2001

Maintains residential amenity

Unuathorised as-built increase in floor levels for up to a maximum 970mm higher than the approved application.

 

The submitted plans indicate that the ridge height of the front row of units has increased by 970mm and the rear row of units by 750mm.

 

 

 

N/A

 

The number

 of parking spaces remain as approved.

The finished floor levels to the basement carpark have been increased  to a maximum of 970mm higher than the approved DA plans along the south-east portion of the site

 

The as-built ground floor finished floor levels of the units have been raised higher than the approved DA plans in the following manner:

 

Front Row

 

Unit 1- 1210mm

Unit 2- 1200mm

Unit 3-1200mm

Unit 4-1190mm

Unit 5-1190mm

 

Rear Row

Unit 6-480mm

Unit 7-490mm

Unit 8-490mm

Unit 9-490mm

Bulk and Scale

 

The unauthorised variations have impacted unduly on the amenity of adjoining properties and on the streetscape by providing for an excessively bulky development that is visually dominating. Accordingly, to address the visual impact of the excessive bulk and scale of the development, the applicant was requested to submit amended plans to address the bulk and scale resulting from the increased finished floor levels, particularly towards the street. The changes include additional landscaping in the form of planter boxes with dense landscaping to the front of the building. This will reduce the impact of the raised flush walls between the stairs of each unit facing the street. 

 

In addition, the design of the stairs to each unit along the front row has been reconfigured to ensure that the stairs step down towards the street. Unlike the existing built design where the stairs are orientated sidewards and the number of steps (8 steps) leading into the unit is visually dominant, the distance between the ground level and the entrance of each unit within the front row will be minimised by providing stairs are orientated towards the street.

 

It is considered that these changes will adequately reduce the visual impact of excessive bulk and scale caused by the increased finished floor levels.

 

Overlooking

 

An inspection of the site revealed that the increased finished floor levels will allow for direct overlooking into the courtyard of the adjoining property located immediately to the east of the site. Accordingly, a condition is recommended requiring 600mm of lattice screening to be surmounted on top of the dividing fence along the eastern elevation of the site to minimise the potential for overlooking into the courtyard of the adjoining property.

 

It is not considered that the increase in building height will provide for direct overlooking into the Private Open Space area and windows of adjoining properties along the northern (rear) or western (side) elevation.

 

It is noted that the impact of the rear row of units to adjoining properties with respect to overlooking and bulk and scale is not adverse, as the ground floor levels to the rear row of units have been increased to a maximum of 490mm higher than the approved plans, resulting in a maximum finished floor level of 590mm only.

 

 

Overshadowing

 

Due to the southern orientation of the site, habitable rooms and Private Open Space Areas of adjoining properties will not be overshadowed on the winter solstice.

 

The shadow diagrams submitted with this application show that the dining room of each unit and courtyard area of Units 1-5 (front row) will be overshadowed for more than 3 hours on the winter solstice. Whilst the increased floor levels will increase the impact of overshadowing to the affected areas, it is considered that the extent of overshadowing has not been significantly increased as a result of the unauthorised finished floor levels. Given the orientation of the site, and the height/bulk of a permissible town house development on the site, overshadowing to these areas will be unavoidable.

Reconfiguration of the staircase providing access to the ground floor of each unit within the front row to provide for a landing which faces the street.

 

 

N/A

Yes

 

 

Yes –

 

The design of the stairs to each unit along the front row has been reconfigured to ensure that the stairs are orientated towards the street. Unlike the existing built design where the stairs are orientated sidewards and the number of steps (8 steps) leading into the unit is visually dominant, the distance between the ground level and the entrance of each unit within the front row will be minimised by providing stairs are orientated in a forward direction towards the street.

Amended landscaping in the form of additional planter boxes between each set of stairs which provide access to the front ground floor units.

 

 

N/A

Yes

 

 

Yes –

 

Additional landscaping in the form of planter boxes containing dense landscaping to the front of the building to provide a camouflage and therefore reduce the impact of the raised flush walls between the stairs of each unit facing the street. 

The deletion of condition No.59 of the original consent requiring a minimum floor to ceiling height of 2.5 metres within the basement level carpark.

 

 

N/A

Yes

 

 

No –

 

Given that the as-built basement level floor to ceiling height is 2.0m for a portion of the carpark; this presents a non-compliance with the deemed to satisfy provisions of the Building Code of Australia as well as Australian Standard 2890.1.

 

Accordingly, a condition is recommended requiring that the basement carpark is to comply with the performance requirements of the BCA and the relevant Australian Standard.    

 

 

Threatened Species

The modification does not relate to development consent referred to in section 79B (3), or in respect of which a biobanking statement has been issued under Part 7A of the Threatened Species Conservation Act 1995.

 

Conclusion

 

After consideration of the development against and the relevant statutory and policy provisions, the proposal is suitable for the site and is in the public interest. Therefore, it is recommended that the application be approved.

 

Recommendation

 

Approval

 

That Council as the consent authority, modify development consent to Development Application No. DA/2862/2002 in the following manner:

 

The following conditions be amended/added.

 

Condition No. 1 is to be modified as follows:

 

1.         The development is to be carried out in accordance with the following plans and documentation listed below and endorsed with Council’s stamp, except where amended by other conditions of this consent:

 

Drawing N0

Dated

Ground Floor Plan detailed by design effect. Issue F (reflecting stairs which step down towards the street from the front row of units)

14 August 2010

First Floor Plan detailed by design effect. Issue F

14 August 2010

Basement Floor Plan detailed by design effect. Issue F           

14 August 2010

Attic Floor Plan detailed by design effect. Issue F

14 August 2010

Site Management Plan detailed by design effect. Issue F

14 August 2010

Elevation Plan detailed by design effect. Issue F

14 August 2010

Internal Elevation/Section Plan detailed by design effect. Issue F (reflecting stairs which step down towards the street from the front row of units)

14 August 2010

Landscape Plan detailed by rfa landscape architects. Issue A. Drawing No. L-01 (applicable to the front elevation of the building only)

8 November 2010

 

 

Note:              In the event of any inconsistency between the architectural plan(s) and the landscape plan(s) and/or stormwater disposal plan(s) (if applicable), the architectural plan(s) shall prevail to the extent of the inconsistency.

Reason:        To ensure the work is carried out in accordance with the approved plans.

 

 

 

 

The following additional conditions are imposed.

 

1.   The provision of 600mm lattice screening shall be surmounted on top of the   entire length of the eastern boundary fence prior to the issue of the Occupation Certificate.

Reason: To minimise the impact of overlooking.

 

2.  All landscape works shall be maintained for a minimum period of two (2) years after the final completion, in accordance with the approved plans and conditions.

Reason:        To ensure restoration of environmental amenity.

 

Condition No. 59 is to be modified in the following manner:

 

The floor to ceiling height of the basement car parking area is required to satisfy the performance requirements of the Building Code of Australia and Australian Standard AS 2890.1.

Reason: To comply with the height requirements of the BCA and AS 2890.1.        

 

 

 

Report prepared by:

                                                                                                                                   

Lina Dababneh

Development Assessment Officer

Development Assessment Team