Agenda of Local Planning Panel - Tuesday, 15 December 2020

Local Planning Panel 15 December 2020 Item 5.1

DEVELOPMENT APPLICATION

ITEM NUMBER 5.1

SUBJECT PUBLIC MEETING:
245-247 Kissing Point Road, Dundas (Lot 1 in DP 650987 & Lot 1 in DP 128425) (Dundas Ward)

DESCRIPTION Boundary adjustment to create two (2) lots from the existing two (2) lots, demolition of existing structures and construction of a part two-storey and part three-storey child care facility for 58 children (4 x 0-2 year olds, 14 x 2-3 year olds & 40 x 3-5 year olds) and basement car parking for 17 vehicles with vehicular access from Spurway Street.

REFERENCE DA/151/2020 - D07722991

APPLICANT/S Baini Design

OWNERS Kissing Point Holdings Pty Ltd

REPORT OF Group Manager Development and Traffic Services

DATE OF REPORT - 23 November 2020

REASON FOR REFERRAL TO LPP

The application is referred to the Parramatta Local Planning Panel (PLPP) as the proposal has received thirty-three (33) submissions.

EXECUTIVE SUMMARY

This is a summary of the full assessment of the application as outlined in Attachment 1, the Section 4.15 Assessment Report.

The property is known as 245-247 Kissing Point Road, Dundas. Approval is sought for boundary adjustment to create two (2) lots from the existing two (2) lots, demolition of existing structures, removal of sixteen (16) trees and construction of a part two-storey and part three-storey child care facility for 58 children (4 x 0-2 year olds, 14 x 2-3 year olds & 40 x 3-5 year olds) and basement car parking for 17 vehicles with vehicular access from Spurway Street.

The proposal is permissible in the R2 Low Density Residential Zone under Parramatta Local Environmental Plan 2011 (PLEP 2011). The proposal is not consistent with the relevant requirements of State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017, Child Care Planning Guideline, Parramatta Local Environmental Plan 2011 and the Parramatta Development Control Plan 2011.

The proposal has not provided sufficient information regarding the Child Care Planning Guideline August 2017 with respect to site selection and location, local character, streetscape and the public domain, building orientation, envelope and design, landscaping, visual and acoustic privacy, noise and air pollution, storage space requirements, toilet and hygiene facilities, ventilation and natural light, administrative space, nappy change facilities, premises designed to facilitate supervision, emergency and evacuation procedures, fencing and shade structure device/details.

The application received 33 submissions during the formal 21-day notification period between 8 April 2020 and 1 May 2020. Issues raised within the submissions related to permissibility, over supply of child care centres, number of children, solar access, visual and acoustic privacy, safety, noise, inadequate setbacks, inconsistent streetscape character and design, adverse traffic and parking impacts, bulk and scale, inadequate stormwater drainage, road congestion, inadequate waste management, adverse construction impacts and devaluation of property.

The proposal is not considered to result in a development, which is suitable in the context of the emerging character within the locality. Non-compliances are acknowledged within the current proposal and these have been discussed within the assessment report. A merit assessment of the application has determined that the proposal will not be satisfactory and results in unreasonable impacts to adjoining and surrounding properties. The proposal is not suitable for the site and is not in the public interest.

RECOMMENDATION

(a) That the Parramatta Local Planning Panel (PLPP) exercising the functions of Council, pursuant to Section 4.16(1)(b) of the Environmental Planning and Assessment Act 1979 refuse Development Application No. DA/151/2020 for boundary adjustment to create two (2) lots from the existing two (2) lots, demolition of existing structures and construction of a part two-storey and part three-storey child care facility for 58 children (4 x 0-2 year olds, 14 x 2-3 year olds & 40 x 3-5 year olds) and basement car parking for 17 vehicles with vehicular access from Spurway Street on land at Lot 1 in DP 650987 and Lot 1 in DP 128425, 245-247 Kissing Point Road, DUNDAS NSW 2117 for the following reasons.

Insufficient subdivision pattern

1. Pursuant to Sections 4.15(1)(a)(i) and (b) of the Environmental Planning and Assessment Act 1979, Clause 4.1 ‘Minimum subdivision lot size’ of the Parramatta Local Environmental Plan 2011 and Part 3.7 ‘Subdivision’ of the Parramatta Development Control Plan 2011, the proposed boundary adjustment (subdivision) creates a western lot which is not characteristic of the existing lot shape, size of pattern in the R2 Zone. The proposed western lot dimensions are not accurately shown on the plan nor show the indicative building footprints of the western lot to ascertain whether the new lot can achieve the maximum theoretical potential as envisioned by the PDCP 2011.

State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2007 / Child Care Planning Guideline August 2017

2. Pursuant to Sections 4.15(1)(a)(i) and (b) of the Environmental Planning and Assessment Act 1979, the proposal is unsatisfactory regarding the design quality principles and the Child Care Planning Guideline August 2017 with respect to site selection and location, local character, streetscape and the public domain, building orientation, envelope and design, landscaping, visual and acoustic privacy, noise and air pollution, storage space requirements, toilet and hygiene facilities, ventilation and natural light, administrative space, nappy change facilities, premises designed to facilitate supervision, emergency and evacuation procedures, fencing and shade structure device/details.

Inconsistency with the Aims of Parramatta Local Environmental Plan 2011

3. Pursuant to Sections 4.15(1)(a)(i) and (b) of the Environmental Planning and Assessment Act 1979, the proposal is inconsistent with Clause 1.2(2)(h) ‘Aims of Plan’ of the Parramatta Local Environmental Plan 2011 as it fails to enhance the amenity and characteristics of the established residential area and in terms of the site selection, design and location.

Inconsistency with the R2 Zone objectives of Parramatta Local Environmental Plan 2011

4. Pursuant to Sections 4.15(1)(a)(i) and (b) of the Environmental Planning and Assessment Act 1979 and Clause 2.3 ‘Zone Objectives and Land’ of Parramatta Local Environmental Plan 2011, the proposal is inconsistent with the stated objective (dot point 3) of the R2 Zone of PLEP 2011. The above-ground built form is 3m from the northern boundary which creates an undesirable amenity to the future dwelling/s on the western lot. Further, the proposed subdivision creates an elevated L-shaped outdoor play area with play equipment abutting the boundaries of adjoining and surrounding dwellings along Wassell Street, Kissing Point Road and Spurway Street results in unreasonable visual and acoustic amenity impacts to adjoining properties. The proposal is of a bulk and scale that adversely impacts on the streetscape and adjoining properties and does not achieve satisfactory urban design outcomes. The proposal is not suitable for this site as it would have a significant impact on local amenity. This is at odds with the aim and objectives (dot point 3) of the R2 Low Density Residential zone within the PLEP 2011, both concerned with minimising such impacts.

Unacceptable streetscape

5. Pursuant to Section 4.15(1)(a)(iii) and (b) of the Environmental Planning and Assessment Act 1979 and Part 3.2.5 ‘Streetscape’ and Part 2.12.6 ‘Development on Sloping Land’ of Parramatta Development Control Plan 2011, the Child Care Planning Guideline gives considerable attention to the existing character of the streetscape and the proposed street presentation to both Kissing Point Road and Spurway Street is a negative aspect of the proposal. The proposed building is not in character with the established residential setting.

6. Pursuant to Section 4.15(1)(a)(iii) and (b) of the Environmental Planning and Assessment Act 1979 and Part 2.12.8 ‘Public Domain’ and Part 3.2.6 ‘Fences’ of the Parramatta Development Control Plan 2011, the building does not appropriately address the public domain along Spurway Street or Kissing Point Road. In addition, the fencing detracts from providing positive interface between private and public domains.

Unacceptable bulk and scale

7. Pursuant to Section 4.15(1)(a)(i) and (iii) of the Environmental Planning and Assessment Act 1979, the Child Care Planning Guideline and Part 3.1.3 ‘Preliminary Envelopes’, Part 3.2.1 ‘Building Form and Massing’ and Part 3.2.2 ‘Building Façade and Articulation’ of the Parramatta Development Control Plan 2011, the built form is considerably out of scale with its established residential setting as the proposal does not observe the prevailing front setbacks to Spurway Street or to Kissing Point Road, the internal side and rear setbacks to the proposed western lot. The acoustic mitigation measures do not fully resolve the visual privacy impacts to adjoining and surrounding properties. The scale of the proposal creates an undesirable built form within an established residential setting as the total height of the acoustic barrier fencing including the modified ground levels and retaining walls above the natural ground level results in a structure that is excessive in bulk and scale as the acoustic barrier is approximately 2.4m-3.7m above the proposed new western lot.

Inadequate landscaping (and deep soil) from the acoustic fences

8. Pursuant to Section 4.15(1)(a)(i) of the Environmental Planning and Assessment Act 1979, the Child Care Planning Guideline and Part 3.3.1 ‘Landscaping’ of the Parramatta Development Control Plan 2011, the absence of any significant perimeter landscaping on-site creates a sense of enclosure for both the children in care, especially given the height of the proposed acoustic boundary/balustrade fencing, and the adjoining properties. The lack of such landscaping, generally 2m in width as prescribed in Part 5.1 of the Parramatta Development Control Plan 2011, along the site boundaries is a significant negative aspect of the proposal. The visual impact from the adjoining residential properties created as a result of the installation of the acoustic boundary/balustrade fencing is unacceptable in an established residential setting.

9. Pursuant to Section 4.15(1)(a)(i) and (iii) of the Environmental Planning and Assessment Act 1979, the Child Care Planning Guideline and Part 3.3.3 ‘Visual and Acoustic Privacy’ and Part 5.2.3.5 ‘ Acoustic and Visual Privacy’ of the Parramatta Development Control Plan 2011, the 26m long 2.1m high acoustic barrier to the new western lot (as recommended by the acoustic consultant) and to adjoining residential properties is not adequately addressed in the proposal. The visual impact of the recommended height of the acoustic fences/balustrades barriers to the neighbouring residential properties, to the west, is approximately 2.4m-3.7m above the proposed new western lot and is unacceptable given these properties sits below the elevated L-shaped outdoor play area.

Air Quality/Pollution

10. Pursuant to Section 4.15(1)(a)(i) and (iii) of the Environmental Planning and Assessment Act 1979 and Part 2.12.5 ‘Air Quality’ of the Parramatta Development Control Plan 2011, the submitted air quality assessment report has not provided the air quality parameters for the proposed underground parking given the site is located on Kissing Point Road. In addition to the proximity of the major arterial road, the proposal has not considered the car exhaust fumes which will emanate from the basement car parking level. No mechanical ventilation or exhaust extraction stacks are shown on the plans.

Insufficient information

11. Pursuant to Section 4.15(1)(a)(i) and (iii) of the Environmental Planning and Assessment Act 1979 and Part 2.12.2 ‘Water Management’ and Part 3.3.6 Water Sensitive Urban Design’ of the Parramatta Development Control Plan 2011, stormwater/engineering concept plans have not been provided.

12. Pursuant to Section 4.15(1)(a) (iii) of the Environmental Planning and Assessment Act 1979 and Part 3.4.2 ‘Access for People with Disabilities’ of the Parramatta Development Control Plan 2011, inadequate Disability Discrimination Act 1992 (DDA) information including the absence of a revised access report have been provided.

13. Pursuant to Section 4.15(1)(a)(i) and (iii) of the Environmental Planning and Assessment Act 1979, the Child Care Planning Guideline and Part 3.4.4 ‘Safety and Security’ of the Parramatta Development Control Plan 2011, insufficient information regarding the evacuation/assembly point not shown. In addition, integrated fencing, security gates and landscaping and security details have not been provided which creates opportunities for anti-social behaviour which does not comply with Crime Prevention Through Environmental Design (CPTED) principles.

14. Pursuant to Section 4.15(1)(a)(i) and (iii) of the Environmental Planning and Assessment Act 1979, the Child Care Planning Guideline and Part 3.3.5 ‘Solar Access and Ventilation’ of the Parramatta Development Control Plan 2011, the shadow diagrams provided do not include the shadows cast by the proposal, any future dwellings on the proposed western lot or the shade sail structures in conjunction with the proposed acoustic consultant’s recommendation.

15. The development is considered to adversely impact on the built environment (Section 4.15(1)(b) Environmental Planning and Assessment Act 1979).

16. The proposal fails to satisfy the relevant considerations under Section 4.15(1)(c) Environmental Planning and Assessment Act 1979 as the site constraints together with the design issues renders the site unsuitable for the development.

17. The proposal fails to satisfy the relevant considerations under Section 4.15(1)(e) Environmental Planning and Assessment Act 1979 in that the adverse impacts generated by the development due to non-compliance with the applicable planning controls is not beneficial within the development site or to the established residential community and as such, it is not considered to be in the wider public interest.

(b) That the objectors be advised of the PLPP’s decision.

Shaylin Moodliar

Senior Development Assessment Officer

Attachments:

1 ⇩	Assessment Report	39 Pages
2 ⇩	Locality Map	1 Page
3 ⇩	Plans used during assessment	35 Pages
4 ⇩	Noise Impact Assessment	35 Pages
5 ⇩	Updated Parking & Traffic Impact Assessment Report	46 Pages
6 ⇩	Plan of Management	20 Pages

REFERENCE MATERIAL

Local Planning Panel 15 December 2020 Item 5.2

DEVELOPMENT APPLICATION

ITEM NUMBER 5.2

SUBJECT PUBLIC MEETING:
56 Dudley Street, Rydalmere (Lot 49 DP 12523)

DESCRIPTION Section 8.3 Review of determination of DA/460/2019 for demolition of existing structures, removal of six (6) trees and construction of a 3-storey boarding house comprising seventeen (17) single occupancy rooms pursuant to SEPP (Affordable Rental Housing) 2009 with basement car parking for nine (9) vehicles and associated earthworks and landscaping.
The review includes amendments to the proposal including removal of one boarding room, increased setback to northern courtyard area, reduced roof bulk and relocation of common area.

REFERENCE DA/460/2019 - D07729684

APPLICANT/S 56 Dudley Pty Ltd

OWNERS 56 Dudley Pty Ltd

REPORT OF Group Manager Development and Traffic Services

DATE OF REPORT – 15 DECEMBER 2020

REASON FOR REFERRAL TO LPP

The application involves a Review of Determination of DA/460/2019 pursuant to Section 8.3 of the Environmental Planning and Assessment Act 1979.

EXECUTIVE SUMMARY

This is a summary of the full assessment of the application as outlined in Attachment 1, the Section 8.3 Assessment Report.

The Site

The subject site is legally described as Lot 49 in DP 12523, and is commonly known as No. 56 Dudley Street, Rydalmere. The site is located on the eastern side of Dudley Street, bounded by Calder Road to the north and Reserve Street to the south. The site has a total area of 543.4m².

The site is zoned R3 Medium Density Residential pursuant to the Parramatta Local Environmental Plan 2011. Surrounding properties directly to the north, south and east are zoned R3 Medium Density Residential. Properties further to the east of the site from Crowgey Street are zoned R2 Low Density Residential.

The site is surrounded by predominantly low scale single storey detached dwellings with newer development along Dudley Street comprising two storey dwellings and attached dual occupancy developments.

Background

Development consent was refused by the Parramatta Local Planning Panel on 17 March 2020 for “Demolition of existing structures, removal of six (6) trees and construction of a 3-storey boarding house comprising seventeen (17) single occupancy rooms pursuant to SEPP (Affordable Rental Housing) 2009 with basement car parking for nine (9) vehicles and associated earthworks and landscaping”. The reasons for refusal are as follows:

Incompatibilty with State Environmental Planning Policy (Affordable Rental Housing) 2009

1. The proposed development does not exhibit a satisfactory building form and massing, in that it is inconsistent with the following provisions prescribed within State Environmental Planning Policy (Affordable Rental Housing) 2009:

i) Clause 29(1)(a) - the proposal will result in a gross floor area of 432.8m², resulting in a FSR of 0.79:1, which exceeds the maximum GFA by approximately 106.8m² (or 32.7%).

ii) Clause 29(2)(c) – the proposal will result in the first floor southern communal area space not receiving a minimum of 3 hours direct sunlight between 9am and 3pm in mid-winter.

iii) Clause 29(2)(f) – Fifteen (15) boarding rooms does not comply with the minimum room accommodation sizes resulting in poor internal amenity for the occupants of the boarding rooms.

iv) Clause 30(1)(a) - Although two communal areas are provided, these areas are located and designed in such a way that they will serve as more of a thoroughfare/ passageway or as lobbies than as communal living areas. Both communal areas are not suitable to all lodgers for recreational purposes.

v) Clause 30A – The design is not compatible with the character of local area. The proposed 3-storey form and density is akin to a residential flat building style of development, which is a prohibited land use in the medium density zone.

Accordingly, the proposal fails to satisfy Section 4.15(1)(a)(i) of the Environmental Planning and Assessment Act 1979.

Inconsistency with the Aims of Parramatta Local Environmental Plan 2011

2. The proposal is inconsistent with Parramatta Local Environmental Plan 2011, Clause 1.2(2)(h) ‘Aims of Plan’ as it does not contribute towards the orderly and sustainable development of Parramatta.

Inconsistency with the R3 Zone objectives of Parramatta Local Environmental Plan 2011

3. The proposal is inconsistent with the stated objectives of the R3 Zone of PLEP 2011 in that the proposed built form appears more like a residential flat building and that the anticipated number of occupants would result in unsympathetic intensification of the use of the land when compared with the average occupancy rate for a typical multi dwelling housing development. In this regard, the proposal is considered an overdevelopment of the site and is inconsistent with the objectives (bullet points 2 & 4) of the R3 Medium Density Residential zone.

Excessive Floor Space

4. The proposal does not comply with Clause 4.4 ‘Floor Space Ratio’ of PLEP 2011 as the proposal will result in a gross floor area of 432.8m², resulting in a FSR of 0.79:1, which exceeds the maximum GFA by approximately 106.8m² (or 32.7%).

Inconsistency with the Parramatta Development Control Plan 2011

5. The proposed development does not exhibit a satisfactory building form and massing, in that it is inconsistent with the following provisions prescribed within Parramatta Development Control Plan 2011:

· Section 2.12.6 – Development on Sloping Land – the ground floor level seeks fill of approximately up to 1 metre above the existing natural ground level whereas the communal open space seeks fill approximately 540-690mm above the existing natural ground level and therefore not acceptable, as this will creates opportunities for overlooking and adverse visual and acoustic impacts upon the adjoining properties.

· Section 3.1.3 – Preliminary Building Envelopes – excessive floor space ratio, insufficient site frontage, inadequate side setbacks, insufficient deep soil zones and inadequate landscaped areas.

· Section 3.2.1 – Building Form and Massing

· Section 3.2.3 – Roof Design

· Section 3.2.5 – Streetscape

· Section 3.3.2 – Privacy and Communal Open Space

· Section 3.3.3 – Visual and Acoustic Privacy

· Section 3.3.5 – Solar Access and Cross Ventilation

· Section 3.4.2 – Access for persons with Disabilities

· Section 3.7.2 – Site Consolidation and Isolated Sites

· Section 5.1 – Boarding Houses

Accordingly, the proposal fails to satisfy Section 4.15(1)(a)(iii) of the Environmental Planning and Assessment Act 1979.

6. Insufficient information

a) Clause 4.6 ‘Exceptions to Development Standards’ of PLEP 2011 in the absence a written request seeking justification of the floor space ratio development standard.

b) The Plan of Management provided by the applicant does not provide the appropriate level of detail required in a Plan of Management.

c) The acoustic report does not address the noise intrusion from the communal open spaces adjacent to the boarding rooms.

7. The development fails to provide high quality affordable rental housing in the form of a boarding house that ensures that its operation would not adversely impact upon amenity of the site and surrounding land. Accordingly, the proposal fails to satisfy Section 4.15(1)(a)(i),(b),(c) (d) & (e) of the Environmental Planning and Assessment Act, 1979.

8. The development is not considered to be in the public interest given the number of submissions received and its failure to ensure privacy and amenity of the adjoining neighbouring properties and fails to satisfy the objectives of the R3 Medium Density Residential zone and character compatibility requirements of SEPP (Affordable Rental Housing) 2009. Accordingly, the proposal fails to satisfy Section 4.15 (a)(i), (d) and (e) of the Environmental Planning and Assessment Act, 1979.

Proposed Development

Approval is sought under Section 8.3 Review of Determination for the proposed development as follows:

· Demolition of existing buildings and structures on the site:

· Tree removal of six (6) trees;

· Construction of a two storey with attic boarding house with one level of basement parking comprising:

- 16 rooms for a total of 18 lodgers;

- 9 car parking spaces including one accessible space;

- 4 motorbike spaces; and

- 4 bicycle parking spaces.

Amended plans were submitted to Council during the course of assessment. The amended plans are subject of this assessment.

The application was advertised in accordance with Council’s notification procedures outlined in the Parramatta Development Control Plan 2011. 13 unique submissions were received during the notification period. A summary of the issues raised within these submissions is contained within the Section 8.3 Assessment Report.

The application was referred to Council’s Traffic Engineer, Development Engineer, Tree and Landscape Officer, Environmental Health Officer, Urban Design Officer, Accessibility Officer who raised no objections to the proposal subject to recommended conditions of consent. The application was also referred to Transport for NSW and Sydney Trains who raised no objections subject to recommended conditions of consent.

After consideration of the development against Section 4.15 of the Environmental Planning and Assessment Act 1979, and the relevant statutory and policy provisions, the proposal is suitable for the site and is in the public interest. It has been recommended for approval for the following reasons:

1. The development as amended, satisfactorily addresses the previous reasons for refusal.

2. The development is permissible in the R3 zone and satisfies the requirements of all of the applicable planning controls.

3. The development will be compatible with the emerging and planned future character of the area.

4. For the reasons given above, approval of the application is in the public interest.

Accordingly, the application is recommended for deferred commencement approval subject to conditions of consent.

RECOMMENDATION

(a) That the Parramatta Local Planning Panel, exercising the functions of Council, pursuant to Section 4.17 of the Environmental Planning and Assessment Act, 1979, that Council grant deferred commencement development consent to DA/460/2019 for a period of five (5) years within which physical commencement is to occur from the date on the Notice of Determination, subject to conditions of consent.

It has been approved for the following reasons:

1. The development as amended, satisfactorily addresses the previous reasons for refusal.

2. The development is permissible in the R3 zone and satisfies the requirements of all of the applicable planning controls.

3. The development will be compatible with the emerging and planned future character of the area.

4. For the reasons given above, approval of the application is in the public interest.

(b) Further, that submitters are advised of the decision.

Sohini Sen

Senior Development Assessment Officer

Attachments:

1 ⇩	Assessment Report & Conditions	99 Pages
2 ⇩	Locality Map	1 Page
3 ⇩	Plans used during assessment	16 Pages
4	Internal plans used during assessment (confidential)	10 Pages
5 ⇩	Statement of Environmental Effects	65 Pages
6 ⇩	Plan of Management	19 Pages

REFERENCE MATERIAL

Local Planning Panel 15 December 2020 Item 5.3

DEVELOPMENT APPLICATION

ITEM NUMBER 5.3

SUBJECT PUBLIC MEETING:
33 Thomas Street, Parramatta (Lot 10 DP 11014)

DESCRIPTION Section 8.3 Review of Determination of DA/549/2018 for demolition works, tree removal and construction of a two (2) storey child-care centre for 56 children with basement car parking, associated earthworks and landscaping.

REFERENCE DA/549/2018 - D07780379

APPLICANT/S Baini Design

OWNERS Paul Roumanous

REPORT OF Group Manager Development and Traffic Services

DATE OF REPORT – 15 DECEMBER 2020

REASON FOR REFERRAL TO LPP

This matter received more than 10 unique submissions and is required to be considered at a public meeting as per Local Planning Panels Direction – Operational Procedures dated 30 June 2020 made under Section 9.1 of the Environmental Planning and Assessment Act 1979; and

A review of determination made under Section 8.3 of the Environmental Planning and Assessment Act 1979 must be determined by the Local Planning Panel as per City of Parramatta Business Rules (signed October 2020).

EXECUTIVE SUMMARY

Site Details

The subject site is known as 33 Thomas Street, Parramatta (Lot 10 DP 11014). The subject site currently accommodates a single storey dwelling house.

The subject site and surrounding properties are zoned as R4 High Density Residential under the Parramatta Local Environmental Plan 2011.

Background

The Development Application DA/549/2018 was refused by the Parramatta Local Planning Panel on 12 December 2019 for the following reasons:

1. State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017

a. The proposed development is inconsistent with the following Design Quality Principles prescribed under the Child Care Planning Guideline 2017:

· Principle 2 – Built form;

· Principle 3 – Adaptive Learning Spaces;

· Principle 5 – Landscape; and

· Principle 6 – Amenity.

b. The proposed development is inconsistent with the following clauses under the Education and Care Services National Regulations:

· Clause 113 – Outdoor space-natural environment.

2. Environmental Planning and Assessment Act 1979

a. As highlighted above, the proposal has non-compliances with both the SEPP (Educational Establishments and Child Care Facilities) 2017. Accordingly, the proposal fails to satisfy the matters of consideration prescribed under s4.15(1)(a)(i) of the EP&A Act 1979.

b. As the proposed development is not consistent with critical provisions of child care centres required to ensure amenity of the children, staff and surrounding locality, the proposal is not considered to be in the public interest and also fails to satisfy s4.15(1)(b)(d) and (e) of the EP&A Act 1979.

Pursuant to Section 8.3 of the Environmental Planning and Assessment Act 1979, a Review of Determination was submitted with revised plans and information. It is considered that the revised plans and information has not addressed the concerns raised by Council during the assessment of the original application.

Development Proposal

The proposed development is for demolition works, tree removal and construction of a two storey child-care centre for 47 children with basement car parking, associated earthworks and landscaping. The subject application has made the following key changes from the original development application:

· Reduction in the number of children from 56 to 47.

· Reduction in FSR from 0.65:1 to 0.6:1.

· Increased front setback from 5m to 8.4m.

· Increased rear setback from 5m to 10m (minimum).

· Reduction in basement footprint to allow increased deep soil planting.

· Reduction in total number of car parking spaces from 14 to 12, as a result of a reduction in visitor spaces from 5 to 4.

· Replacement of entry ramp with steps and a lift.

· Provision of additional landscaped area within the front setback and revised landscape design in the rear setback, incorporating additional planting and turfed areas.

· Subsequent design and layout amendments to the internal and outdoor areas.

The application has been assessed against the relevant environmental planning instruments, regulations and the Parramatta Development Control Plan (DCP) 2011, and found the development to be non-compliant with a number of key statutory controls.

The application was notified in accordance to the requirements within DCP 2011. 29 unique submissions were received during the notification period.

With respect to the issues and matters addressed in detail within Attachment 1, the application is recommended for refusal.

RECOMMENDATION

That the Parramatta Local Planning Panel (PLPP) exercising the functions of Council, pursuant to Section 4.16 of the Environmental Planning and Assessment Act, 1979, refuse development consent to DA/549/2018.

The reasons for refusal are as follows:

1. State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017

a. The proposed development is inconsistent with the Design Quality Principles prescribed under the Child Care Planning Guideline 2017;

b. The proposed development is inconsistent with the following clauses under the Education and Care Services National Regulations:

· Clause 107 – Space requirements – indoor space

· Clause 109 – Toilet and hygiene facilities

· Clause 110 – Ventilation and natural light

· Clause 112 – Nappy change facilities

· Clause 113 – Natural environment

2. Environmental Planning and Assessment Act 1979

a. As highlighted above, the proposal has non-compliances with both the SEPP (Educational Establishments and Child Care Facilities) 2017 and the Education and Care Services National Regulations. Accordingly, the proposal fails to satisfy the matters of consideration prescribed under s4.15(1)(a)(i) of the EP&A Act 1979.

As the proposed development is not consistent with critical provisions of child care centres required to ensure amenity of the children, staff and surrounding locality, the proposal is not considered to be in the public interest and also fails to satisfy s4.15(1)(b)(d) and (e) of the EP&A Act 1979

Frances Mehrtens

Senior Development Assessment Officer

Attachments:

1 ⇩	Review Assessment Report	28 Pages
2 ⇩	Locality Map	1 Page
3 ⇩	Plans used during assessment for Review	32 Pages
4 ⇩	Original Assessment Report	31 Pages
5 ⇩	Original Determination/Refusal Notice	3 Pages

REFERENCE MATERIAL

Local Planning Panel 15 December 2020 Item 6.1

INNOVATIVE

ITEM NUMBER 6.1

SUBJECT Gateway Request - Planning Proposal to increase commercial floorspace in Epping Town Centre

REFERENCE F2018/03032 - D07607967

REPORT OF Team Leader Land Use Planning

PURPOSE:

The purpose of this report is to seek further advice from the Local Planning Panel in relation to matters raised at their meeting of 29 September 2020 in order to progress a Planning Proposal to mandate an increase in commercial floor space on certain land within the Epping Town Centre.

RECOMMENDATION

That the Local Planning Panel consider the following Council Officer recommendation in its advice to Council:

(a) That Council delegate authority to the Chief Executive Officer to prepare a planning proposal which seeks the following amendments to Parramatta Local Environmental Plan 2011 and Hornsby Local Environmental Plan 2013 applying to all land in the B2 Local Centre zone in the Epping Town Centre with the exception of 6-14 and 18A Bridge Street and 24-30 High Street that:

i. Introduces new clauses which:

§ Mandate a minimum amount of non-residential uses to be provided on the ground, first and second floors of any building facing a street of up to a maximum of 1:1 floor space ratio (FSR) of non-residential floorspace in addition to the mapped maximum floor space ratio. The clause shall also indicate that the FSR of residential development permitted on the site should not increase as a result of this requirement.

§ Allow for an increase in maximum height of buildings from 48 metres in some parts of Epping and 72 metres in some parts of Epping up to 80 metres (approx. 24 storeys) where sites have a mapped FSR of 4.5:1 and from 72 metres up to 90 metres (approx. 28 storeys) where sites have a mapped FSR of 6:1, only where developments provide a minimum amount of non-residential uses of ground, first and second floors of any building facing a street.

§ Ensure any change of use proposed on the first three levels would not allow residential uses.

§ Apply an exception to that part of a building that faces a service lane or is required for entrances and lobbies, access for fire services or vehicular access associated or servicing residential accommodation above.

ii. Introduces a requirement that the proposed controls of the planning proposal apply to development applications determined once a Gateway Determination has been issued for this Planning Proposal

(b) That the Chief Executive Officer forwards the Planning Proposal to the Department of Planning, Industry and Environment (DPIE) to request the issuing of a Gateway Determination on behalf of Council.

(c) That Council delegate authority to the Chief Executive Officer to prepare amendments to the relevant sections of the Parramatta Development Control Plan 2011 and Hornsby Development Control Plan 2013 to support the Planning Proposal relating to the following design controls, and place these on public exhibition with the Planning Proposal:

i. podium height controls;

ii. minimum floorplate dimensions;

iii. floor to ceiling heights for non-residential uses;

iv. location of services; and

v. building and podium setback controls.

(d) That Council advises the DPIE that the Chief Executive Officer will be exercising the plan-making delegations for this Planning Proposal as authorised by Council on 26 November 2012.

(e) That Council delegate authority to the Chief Executive Officer to correct any minor anomalies of a non-policy and administrative nature that may arise during the plan-making process.

(f) That within 5 years of the planning controls being made as an LEP amendment, that a review be undertaken of the effectiveness of the controls relating to the mandatory provision of a minimum level of commercial floorspace in the B2 Local Centre zone within the Epping Town Centre and any associated recommendations and this review be reported to Council.

PLANNING PROPOSAL TIMELINE

BACKGROUND

1. The Local Planning Panel considered a detailed report relating to a planning proposal to mandate commercial floorspace on B2 Local Centre zoned sites within the Epping Town Centre at its meeting on 29 September 2020.

2. The report considered three potential planning options in relation to the provision of commercial floor space in Epping Town Centre, as follows:

- Option 1 – no change to planning controls, that is, based on current development trends, provision of only ground floor retail/business floor space; or

- Option 2 - mandate a minimum amount of non-residential floor space within the current maximum floor space ratio (FSR) and height controls; or

- Option 3 - mandate a minimum amount of non-residential floor space in addition to the current permitted maximum floor space ratio and height controls.

3. The Panel advice to Council was consistent with the Council Officer recommendation to proceed with Option 3, however the Panel provided additional recommendations. The Panel Report and Minutes can be found at Item 5.2:

https://businesspapers.parracity.nsw.gov.au/Open/2020/LPP_29092020_AGN_641_AT.PDF

https://businesspapers.parracity.nsw.gov.au/Open/2020/LPP_29092020_MIN_641.PDF

4. This report seeks to address the matters raised in the Local Planning Panel’s advice, in addition to the following two related matters:

a. Addressing the Panel’s advice in relation to the savings provision clause to ensure the proposal controls apply prior to the amendment being made and the potential reliance on Clause 4.6. Therefore there is an interaction with the Planning Proposal for Clause 4.6 to ‘switch off’ the variation to development standards for FSR, which will also be considered by the Panel at its meeting on 15 December 2020; and

b. Further urban design testing has been undertaken which reveals the amount of additional floorspace required in order to not to decrease the residential potential on developments within the Epping Town Centre that results in a revised Council Officer recommendation.

LOCAL PLANNING PANEL ADVICE TO COUNCIL

5. The Local Planning Panel considered a detailed assessment report on 29 September 2020 when the Panel’s advice to Council was consistent with the Council Officer recommendation, however the Panel provided additional recommendations, as follows:

“(d) That Council officers investigate the feasibility of imposing a savings provision clause to set a date by which development that does not achieve the required non-residential floor space will no longer be permitted – to ensure that there will not be a rush by developers to land bank or lodge holding applications to avoid the effects of the proposal;

(e) That the Panel believes a more equitable solution to the amount of additional floor space awarded as bonus should be restricted to not more than 0.5:1 – and if so notes it would bring about some lowering of achievable maximum heights in some areas of the centre, thereby reducing potential overshadowing and other potential environmental impacts. In this regard, the Panel is advised limiting the additional FSR maximum to 0.5:1 would not compromise the desired outcome of re-establishing a viable commercial base in the centre.

(f) That a thorough Review of the proposed changes and their effectiveness should be a commitment written into this Proposal – to be undertaken at, say, no later than 3 years from the commencement of the amended LEP.

(g) That Council undertake a campaign to advocate use of Public Transport in and to the Town Centre and to help find new ways to encourage its use over the private car.”

6. Each of the matters raised by the Panel above are considered in turn below.

Imposing a Savings Provisions

7. The Local Planning Panel recommended that a clause be explored whereby a development application must consider the proposal at a certain date, in order to prevent a rush of development applications being lodged to avoid providing a mandated minimum provision of commercial floorspace. Noting that the typical timeframe for Planning Proposals to be processed to finalisation is between 18 and 24 months.

8. In response to the Panel’s advice, Council Officers have explored a provision whereby any DA that is determined after Gateway Determination is received by Council from the Department of Planning, Industry and Environment (DPIE) must consider the proposed planning controls. This would capture development applications determined (regardless of when they are lodged) following the issue of a Gateway Determination. From recent experience, the timeframe following Council’s submission to DPIE to issue of Gateway Determination could be anywhere from between 2 and 6 months.

9. It is noted under this option, a DA determined prior to Gateway Determination being received for this Planning Proposal would be assessed and determined with minimal consideration being given to the commercial floor space provisions proposed in this Planning Proposal. The consideration would be limited because the policy implementation process would only be commencing and there would be perceived potential risks that the policy might not be implemented in the form endorsed by Council. In these cases Council’s decision to pursue this policy would still be considered as a matter of public interest, but historically this would be given limited weight by the body determining any application that was inconsistent with this policy. This is due to the risk/uncertainty about the form the policy might take when it is implemented, and because of procedural fairness concerns about new rules being applied retrospectively to current applications.

10. As the policy continues to be implemented the weight given to the Council’s proposed new commercial floor space policy increases depending on when the application is determined as detailed in Table 1 below.

Table 1 – Impact of this policy change on non-compliant development applications determined after the Gateway Determination is issued

Timing of Determination of Development Application	Weight that will be given to this policy at this time
After Gateway Determination but prior to exhibition of this Plan	The inclusion of a clause in the Planning Proposal that requires this policy to be applied to any application determined after a Gateway Determination is issued means more weight is given to application of this policy because Council has stated clearly its policy position and this has been agreed by DPIE when they issued the Gateway Determination. The level of certainty that the new policy will be applied to any non-complying Development Application as a matter of public interest is significantly increased but the determining authority would not be compelled to refuse a non-complying Development Application.
Once this Plan has been placed on exhibition.	Once the plan has been placed on exhibition there is a further increase in the status of the policy. Section 4.15 (formerly S79C) of the Environmental Planning Assessment Act 1979 lists matters that must be considered when assessing development applications and states that any Draft Planning Proposal placed on exhibition must be formally considered not just as a matter of public interest but as a draft policy position. It is the opinion of Council Officers that the provision of Section 4.15 and the inclusion of a clause that clearly states the policy should be applied to any application determined after Gateway Determination make it unlikely that a determining authority would endorse a non-compliant Development Application in these circumstances.
Once this Planning Proposal is finalised	The policy has full effect and should be given full consideration when determining any application. The applicant’s ability to avoid providing the commercial floor space is significantly decreased compared to the case when controls are included in the DCP as is currently the case.

11. It is recommended that a savings provision be inserted as it will minimise the opportunity that sites will be redeveloped without the required minimum commercial floor space.

Consistency between this Commercial Floor Space Policy and Council’s Policy to stop applicants requesting additional floor space via a Clause 4.6 Variation

12. Council Officers would like to clarify a scenario related to the relationship between this Planning Proposal and a second Planning Proposal recently exhibited which seeks to limit the use of Clause 4.6 of the Parramatta LEP 2011 and Hornsby LEP 2013. Clause 4.6 allows applicants to request to vary a development standard including FSR and building height controls contained in these LEPs. The Planning Proposal that has been exhibited (and is also the subject of a report on this agenda for this Local Planning Panel meeting) removes the opportunity for an applicant to utilise Clause 4.6 to request to vary/increase the FSR of residential accommodation or tourist and visitor accommodation over and above the FSR applicable in the relevant LEP. As discussed in detail in the accompanying report this is proposed to be put in place as a measure to limit traffic impacts.

13. In the report considered by the LPP on 29 September 2020 (see link provided previously in this report) it should be noted that the increase in traffic associated with the additional floor space proposed in this Planning Proposal is considered on balance to be acceptable because the impacts of ensuring a sustainable level of commercial floor space are considered to outweigh the traffic impacts. This is consistent with a policy position taken by Council which indicates that additional density should only be permitted in Epping Town Centre if it addresses other planning issues not just housing demand. In this case the increased density is consistent with this policy framework as the driver is commercial floor space not housing supply.

14. The proposal to restrict the use of Clause 4.6 in relation to restricting additional residential and tourist and visitor accommodation FSR has been exhibited and could come into effect in a matter of months if it is supported by Council.

15. Council Officers have had meetings with developers interested in developing sites in Epping who are broadly supportive of Council’s proposal to mandate a minimum amount of commercial floor space. If one of these developers was to lodge a Development Application that is consistent with Council’s proposed policy for commercial floor space, providing the required amount, Clause 4.6 would still be available as a mechanism to approve this prior to the Commercial Floor Space Planning Proposal being finalised. The finalisation of the Commercial Floor Space Policy could take 6-12 months given the need to obtain a Gateway Determination, exhibit the Planning Proposal and have Council consider all the submissions received.

16. As the application of Clause 4.6 is limited to residential and tourist and visitor accommodation as proposed in the other Planning Proposal, then it would be open to an applicant to make an argument that a Development Application consistent with Council’s commercial floor space policy and incorporating the additional non-residential FSR could still be approved prior to finalisation of the commercial floor space Planning Proposal. The argument would be that the development would be consistent with Council’s commercial floor space policy and Clause 4.6 would be a mechanism for the floor space variation to be considered.

Proposed Additional Floorspace Ratio

17. The Council Officer report of 29 September 2020 recommended that sites with a mapped FSR of 4.5:1 should be granted an additional 0.5:1 FSR and sites with a mapped FSR of 6:1 an additional 1:1 FSR in order to accommodate additional mandated commercial floorspace. As detailed in the Panel report the proposed maximum FSR and heights were devised based on the following:

a. Urban design testing of a selection of sites with the B2 Local Centre zoning;

b. Development applications that have been approved under the current controls and the height variations approved; and

c. Comparative centres and their density and height controls within the City of Parramatta LGA.

18. At the meeting of 29 September 2020, the Panel recommended that a more equitable solution to the amount of additional floor space awarded as bonus should be restricted to not more than 0.5:1, thereby reducing the potential overshadowing and other potential environmental impacts.

19. In response to the Panel’s advice Council Officers make the following recommendations:

a) That the Council Officer planning approach to the FSR is not an arbitrary bonus, rather, to mandate the delivery of more commercial floor space and ensuring that this is viable. Therefore it is recommended to ‘reword’ the proposed provisions to allow for up to an additional non-residential FSR (up to 1:1) and height above the mapped controls if a minimum provision of non-residential uses is provided on the first three floors of mixed use development; and

b) That a maximum additional 1:1 for both 4.5:1 and 6:1 mapped FSR would be required to ensure equivalent potential residential floorspace is maintained and therefore Council Officers recommendation has been amended (from 29 September 2020) so that 4.5:1 and 6:1 sites can achieve an additional 1:1 FSR.

The above Council Officer recommendations are explained in turn below.

20. The proposed additional commercial floor space provisions are intended to be structured so there is no net loss/nor gain of residential potential. The proposed measure only allows additional floor space to achieve Council’s strategy for provision of a minimum level of commercial floor space. As indicated through recent development applications approved within the Epping Town Centre, landowners or developers are delivering the maximum residential potential available on a site, which is currently viewed by the market as the highest yielding land use. Therefore the planning approach is to ensure the delivery of commercial floorspace is viable to be delivered.

21. Figure 1 indicates the planning approach of the proposal. It shows a theoretical development on a site with a current mapped maximum FSR of 6:1 and height of 72 metres (approximately 22 storeys). The orange and blue shaded floorspace indicates what is available under 6:1 and 72m planning controls. The pink shaded floorspace indicates the residential floorspace equivalent to an additional two floors of non-residential floorspace (shaded in light blue). It is noted that due to the smaller floorplate of a residential tower, that in this working example, the pink floorspace results in an additional five residential floors.

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Figure 1 - Indicative Built Form and Floor Space Comparison

22. It is acknowledged that the Panel raised concerns in relation to the increase in FSR and impacts on overshadowing and other potential environmental impacts. Council Officers reiterate the following points in relation to impact, as outlined in the Panel Report of 29 September 2020:

a. Overshadowing analysis reveals that any additional overshadowing falling on the edge of Boronia Park, the residential areas to the south west of the Epping Town Centre and over the railway line between 10am and 11am is marginal and has progressed further eastward by 12 midday. Therefore the overall net additional overshadowing caused by the planning proposal under Option 3 for the majority of B2 sites is considered acceptable.

b. The additional net shadow caused by additional height and density at 6, 8, 10, 12, 14 and 18A Bridge Street and 24-30 High Street largely impacts those sites to its immediate south (areas that are low density residential and within the Epping Eastwood Heritage Conservation Area) for the majority of time between 10am and 2pm. Therefore it is recommended that the B2 Local Centre sites 6, 8, 10, 12, 14 and 18A Bridge Street and 24-30 High Street be excluded from any planning proposal.

c. The Traffic Study undertaken to support the Planning Proposal indicates that there are, and will be, highly congested traffic conditions in Epping under the current planning controls, and that the proposal to mandate additional non-residential floor space will result in additional delays at identified intersections in the peak (in the short to medium term).

d. As a result of changes to planning controls, there will be a short to medium term adverse traffic impact, however this must be balanced with the long term pursuit of the strategic goal of making Epping a thriving Town Centre. There are demonstrable benefits from having an activity and employment based centre which is best placed to serve the needs of the broader community.

e. Council will continue to focus its efforts on delivering and advocating for the necessary traffic and transport improvements required in Epping. By taking advantage of Epping as a public transport hub this will continue to assist in resolving the road based transport issues, and seeking improvements in public transport provisions in areas east and west of Epping to reduce the levels of private vehicle through traffic, which is currently the primary source of congestion problems in the Epping Town Centre.

B. FSR amendments to accommodate mandated commercial floorspace

23. The Council Officer report of 29 September 2020 recommended that sites with a mapped FSR of 4.5:1 should be granted an addition 0.5:1 FSR and sites 6:1 an additional 1:1 FSR in order to accommodate additional mandated commercial floorspace. The Panel at its meeting advised that a ‘bonus’ of 0.5:1 FSR for both 4.5:1 and 6:1 is more equitable.

24. Following advice from the Panel, Council Officers have undertaken additional site testing of potential development sites within the Epping Town Centre. The site testing revealed that:

a. In order to provide an additional two levels of non-residential floorspace and offset the potential loss of residential floorspace, that an additional FSR of approximately 1:1 is required on both 4.5:1 and 6:1 sites within the B2 Local Centre zone, however this is not in every case tested due to unique site conditions and therefore a minimum provision of the first three storeys with a maximum of up to 1:1 FSR is proposed.

b. The additional maximum height of buildings proposed (90 metres - approximately 28 storeys and 80 metres – approximately 24 storeys respectively for 6:1 and 4.5:1 sites) if a minimum of 3 levels of non-residential uses are provided in any development is recommended.

c. As detailed in the Panel report of 29 September 2020, additional height is also required to rectify the historical ‘mismatch’ between the current height and density (FSR) controls for B2 Local Centre zoned sites in Epping Town Centre and is the reason for the significant increase in height of some sites that currently have a height of 48 metres. The increase in height is justified due to the history of consistent use of Clause 4.6 for substantial height variations and the need to gain better tower form and separation outcomes on those sites which have irregular subdivision patterns. It is acknowledged that not all sites will require this additional height. Further, overshadowing analysis was undertaken (refer Panel report of 29 September 2020) which concluded that the overall net additional overshadowing is considered acceptable.

25. The Council Officer recommendation in this report is modified from the recommendation contained in the Panel report of 29 September 2020 only in relation to those B2 Local Centre sites which are currently mapped 4.5:1. It is recommended that an additional 1:1 FSR will support the additional non-residential uses (from original recommendation of 0.5:1 FSR). A summary of the recommendations to the Panel and Panel advice in relation to planning controls is provided at Table 1.

Table 1: Proposed FSR and height of buildings under Option 3

Controls on B2 sites in Epping Town Centre
Current Maximum FSR and Height of Building	Council Officer recommended to LPP meeting 29 Sept 2020	Maximum FSR and Height of Building as advised by LPP 29 Sept 2020	Proposed Potential Maximum FSR and Height of Building Controls
6:1 and 72 metres (22 storeys)	7:1 FSR and 90m (28 storeys)	6.5:1 FSR and 90m (28 storeys)	7:1 FSR and 90m (28 storeys)
4.5:1 and 72 metres (22 storeys)	5:1 FSR and 80m (24 storeys)	5:1 FSR and 80m (24 storeys)	5.5:1 FSR and 80m (24 storeys)
4.5:1 and 48 metres (15 storeys)	5:1 FSR and 80m (24 storeys)	5:1 FSR and 80m (24 storeys)	5.5:1 FSR and 80m (24 storeys)
3.5:1 and 21 metres (6 storeys)	No change proposed. As detailed in the LPP Report of 29 September 2020, the sites are at 6, 8, 10, 12, 14 and 18A Bridge Street and 24-30 High Street and have shadow impact on adjacent residential heritage areas.

Review Timeframe

26. The Local Planning Panel recommended that a review be undertaken of the proposed amendments and their effectiveness, no later than 3 years from the commencement of the LEP and it be written into the Planning Proposal.

27. If a review period was put in place, Council Officer recommend it should occur after 5 years following the introduction of the planning controls. Development application consents have a standard timeframe of 5 years before they lapse. Therefore if DAs were granted that were in line with the controls, then those consents could be ‘held’ until controls were reverted, to put in modifications to those development applications.

28. Furthermore, Council officers do not support introduction of a sunset clause as part of the Planning Proposal, that is, for the controls to discontinue following a period of time.

29. Alternatively, it is recommended that a thorough review be undertaken by Council in order to assess the effectiveness of the controls and recommendations as to how the controls continue or be amended or no longer continue to be in place. This allows for flexibility as to assess options to how the controls may or may not continue. If Council resolves as per the Council Officer’s recommendation (f) above, this would be placed on City Planning’s Work Plan and be reported to Council in the required timeframe.

Advocate for Public Transport

30. The Panel recommended that Council undertake a campaign to advocate use of public transport and help find new ways to encourage its use over the private car.

31. It is noted that it is Council’s role to continually advocate to the NSW Government to supply new or improved public transport services to all parts of the City of Parramatta, including Epping. As our population grows, so does the need for excellent public transport services. Council Officers continue to engage with Transport authorities in relation to both public transport and road improvements in and around Epping Town Centre.

32. It is noted that the North West Sydney Metro opened in May 2019, which connects Epping Town Centre with Chatswood through Macquarie Park, as well as to population centres of the north west. It is expected that the City and South West extension of the Sydney Metro will open in 2024 which will further increase Epping’s accessibility via quality public transport from St Leonards, Crows Nest, North Sydney and the Sydney CBD.

33. It is also noted that both controls relating to the Epping Town Centre in both the Hornsby DCP 2013 and Parramatta DCP 2011 require Travel Plans to be prepared for developments over 10 storeys. The Travel Plans must demonstrate methods to encourage modal shift (including bicycle parking and end of trip facilities).

CONSULTATION & TIMING

34. Notification to both Epping Civic Trust and Epping Chamber of Commerce was given prior to the 29 September 2020 LPP meeting. It is noted that members of the Epping Civic Trust addressed the Panel at its meeting of 29 September 2020 in relation to their concerns in relation to the planning proposal. Notification to these two groups will also occur in relation to the LPP and Council meetings.

FINANCIAL IMPLICATIONS FOR COUNCIL

35. Any work to progress the finalisation of the Planning Proposal and associated draft DCP would be prepared by Council Officers and therefore within the existing City Planning budget.

36. If the Panel advises to pursue a revised floorspace ratio of 0.5:1, the level of development contributions paid would potentially be reduced compared to the Council Officer recommendation of a floor space ratio of 1:1. It is noted that development contributions will apply at the time of development approval being granted.

NEXT STEPS

37. Following the Panel’s consideration of this report, it is noted that the advice from both 29 September 2020 and 15 December 2020 Panel meetings will be included in the report Council on this matter.

38. If Council resolves to proceed with a Planning Proposal based on Option 3, Council Officers will prepare a planning proposal document under the CEO delegation and it will be forwarded to the DPIE for a Gateway Determination.

39. If Gateway Determination is granted, the matter would proceed to public exhibition. Following public exhibition a report on the outcomes of the public exhibition will be provided to the Local Planning Panel addressing any objections received. If no objections are received, the matter will be reported directly to Council seeking approval to finalise the Planning Proposal.

Bianca Lewis

Team Leader Land Use Planning

Robert Cologna

A/Group Manager City Planning

David Birds

A/Executive Director Planning & Design

Attachments:

There are no attachments for this report.

REFERENCE MATERIAL

Local Planning Panel 15 December 2020 Item 6.2

INNOVATIVE

ITEM NUMBER 6.2

SUBJECT Post-exhibition: Planning Proposal to ‘switch off’ Clause 4.6 Variation, as it applies to FSR for sites within the Epping Town Centre.

REFERENCE F2020/01810 -

APPLICANT/S N/A

OWNERS N/A

REPORT OF Project Officer Land Use

Development applications considered by Sydney central city planning panel Nil

PURPOSE:

The purpose of this report is to seek the Local Planning Panel’s advice to Council on the outcome of the public exhibition of the Planning Proposal – Amendments to Clause 4.6, as it applies to the floor space ratio development standard within the Epping Town Centre.

RECOMMENDATION

That the Local Planning Panel consider the following Council Officer recommendation in its advice to Council:

(a) That Council receives and notes the summary of submissions made during the public exhibition of the Planning Proposal – Amendments to Clause 4.6 of Epping Town Centre at Attachment 1.

(b) That Council endorse for finalisation the Planning Proposal to amend Clause 4.6 in the Parramatta Local Environmental Plan 2011 and Hornsby Local Environmental Plan 2013 by disabling the use of Clause 4.6 variations in relation to floor space ratio controls for the following types of development in the Epping Town Centre:

i. In Parramatta LEP 2011 - residential accommodation and tourist and visitor accommodation, or a mixed use development that includes these uses within Zone B2 Local Centre or residential accommodation in Zone R4 High Density Residential; and

ii. In Hornsby LEP 2013 - residential accommodation and tourist and visitor accommodation, or a mixed use development that includes these uses within Zone B2 Local Centre.

(c) That Council submit the Planning Proposal to the Department of Planning, Industry and Environment (DPIE) requesting their finalisation, noting that Council does not have plan-making delegation for this Planning Proposal.

(d) Further, that Council authorises the CEO to correct any minor policy inconsistencies and any anomalies that are of an administrative nature relating to the Planning Proposal that may arise during the finalisation process.

PLANNING PROPOSAL TIMELINE

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BACKGROUND

1. Traffic impact in and around the Epping Town Centre was a key issue examined by Council as part of Phase 1 of the Epping Planning Review (Review) undertaken between 2017 and 2018. The Epping Town Centre Traffic Study was commissioned by Council and finalised in mid-2018. The Review identified significant traffic impacts associated with new development resulting from the rezoning of the Epping Town Centre via the Epping Urban Activation Precinct in 2014. When traffic associated with the new development is introduced to a road network that already has significant congestion due to through traffic on the major roads that pass through the Epping Town Centre the traffic impacts are significant and difficult to manage.

2. At its meeting on 9 July 2018, Council considered the consultation outcomes and technical analysis of the Review in relation to partly addressing the traffic issues and resolved in part:

(c1) … that Council adopts the position that it does not support any

a) Development applications seeking an increase in residential density via clause 4.6 of the PLEP 2011.

And that council write to both the Department of Planning & Environment (DP&E) and the Greater Sydney Commission advising them this will remain Council’s position until the State Government has provided infrastructure to resolve the through traffic issues within the Epping Town centre.

(c2) That a Planning Proposal including all necessary background studies and analysis be prepared to amend Clause 4.6 of PLEP 2011 so that it cannot be used to seek a FSR greater than that permitted on the Floor Space Ratio Map for sites within the Epping Town centre.

3. Consistent with Council’s resolution of 9 July 2018, a Planning Proposal was prepared to amend the Parramatta LEP 2011 (PLEP 2011) and Hornsby LEP 2013 (HLEP 2013) by disabling the use of Clause 4.6 variations in relation to floor space ratio controls for the following types of development in the Epping Town Centre:

a) In Parramatta LEP 2011 - residential accommodation and tourist and visitor accommodation, or a mixed use development that includes these uses within Zone B2 Local Centre or residential accommodation in Zone R4 High Density Residential; and

b) In Hornsby LEP 2013 - residential accommodation and tourist and visitor accommodation, or a mixed use development that includes these uses within Zone B2 Local Centre.

4. It is noted that this Planning Proposal relates to preventing an increase in floorspace greater than that permitted under the current maximum FSR controls for residential and tourist and visitor accommodation uses only and that Clause 4.6 Variations to Development Standards for increases in non-residential FSR may still be utlised. This is detailed further in this report (refer paragraphs 25 – 32 below).

5. It is noted that the R4 High Density Residential zone in the Hornsby LEP 2013 does not have allocated floor space ratio controls. However, under Council’s Harmonisation Planning Proposal, it is proposed that a new FSR control will be applied to R4 zoned sites currently subject to Hornsby LEP 2013 where no FSR control is currently applied. The proposed FSRs will be based on existing height controls applying to a site, and are not intended to reduce or increase permissible densities. It is noted that the intended effects of this Planning Proposal would not to apply to the R4 High Density Residential zone in the Hornsby LEP 2013.

6. The Planning Proposal was reported to and endorsed by the Local Planning Panel on 16 April 2019. The Planning Proposal was subsequently endorsed by Council at the 13 May 2019 meeting for the purposes of requesting a Gateway Determination by the Department of Planning, Industry, and Environment (DPIE). The 13 May 2019 Council Report and Minutes can be found at Item 15.2:

https://businesspapers.parracity.nsw.gov.au/Open/2019/OC_13052019_AGN_496_AT.PDF

https://businesspapers.parracity.nsw.gov.au/Open/2019/OC_13052019_MIN_496.PDF

7. The DPIE issued a Gateway Determination on 10 March 2020, enabling the Planning Proposal to be placed on public exhibition, subject to conditions which are detailed in the section below.

PLANNING PROPOSAL

8. The Planning Proposal (refer to Attachment 2) applies to R4 High Density Residential and B2 Local Centre zoned land in PLEP 2011, and B2 Local Centre zoned land in HLEP 2013, within the Epping Town Centre. The area to which this Planning Proposal is to apply is identified in Figure 1 below.

Figure 1 – Land subject to the Planning Proposal

9. In accordance with the Gateway Determination issued by the DPIE, the Planning Proposal was amended in response to certain conditions prior to public exhibtion to enable:

a) A sunset clause which will automatically remove the Clause 4.6 exemption for FSR:

i. After 3 years to enable the effectiveness of the provision to be further assessed having regard to planned infrastructure improvements and other mitigation measures that have been identified for the Epping Town Centre (Condition 1 (b)(i)); or

ii. If Clause 4.6 under the Standard Instrument – Principal Local Environmental Plan is amended (Condition 1 (b)(ii)); and

b) A savings provision which will prevent the proposed Clause 4.6 exemption applying to development applications lodged, but not determined, prior to a draft LEP being made (Condition 1 (c)).

10. Furthermore, DPIE did not give Council plan-making authority in relation to this Planning Porposal as it intends to alter clauses under the Standard Instrument LEP.

PUBLIC EXHIBITION

11. The Planning Proposal was publicly exhibited from 19 August 2020 to 25 September 2020. The subject Planning Proposal - Epping Town Centre Clause 4.6 was exhibited with the Gateway Determination and the Council minutes and report of 13 May 2019.

12. The Planning Proposal was jointly exhibited with two other planning proposals within Epping (Rosebank Aveue and East Epping) and draft amendments to the Hornsby Development Control Plan (DCP) 2013. The outcomes of the submissions of these planning proposals and draft DCP amendments will be reported to the Local Planning Panel in 2021.

13. The public exhibition included:

a) Notification letters to landowners and occupiers located within the Epping Town Centre applicable to the site area of this proposal;

b) Notification letters to Transport for NSW as required by the Gateway determination;

c) Exhibition materials placed on Council’s website; and

d) Exhibition material provided in hard copy format at Epping Branch Library.

14. The public exhibition activities described above responded to the following considerations:

a) The COVID-19 Legislation Amendment (Emergency Measures) Act 2020 enacted on 14 May 2020 removed the requirements to advertise public exhibitions of DCPs and Planning Agreements in a local newspaper.

b) Community members could request alternative access to the exhibition material if required. However, Council officers did not receive any calls from the public requesting to access hard copy material.

15. A total of fourteen (14) submissions were received during the public exhibition period. These include submissions from Transport for NSW, Heritage NSW, Hornsby Shire Council and eleven (11) from local residents, businesses or developers.

16. It is noted that Transport for NSW, Heritage NSW and Hornsby Shire Council raised no objections to the Planning Proposal.

17. A summary of all submissions and Council officer responses is provided at Attachment 1. The key issues raised in submissions and the Council Officer response are detailed further in the following section of this report.

KEY ISSUES RAISED IN SUBMISSIONS

18. The following key issues were raised by submissions during public exhibition and a response is provided below:

a. Misinterpreting intent of the Planning Proposal;

b. Unfairly applies to future development and not past developments;

c. Will adversely impact on the provision of commercial floorspace;

d. Will undermine the objectives of the EP&A Act 1979;

e. Clause 4.6 variations are required to provide flexibility for development proposals and will reduce the viability of these developments; and

f. The Planning Proposal is an inefficient method for addressing traffic generation.

A more detailed summary and response to each of the concerns outlined above is included in the table at Attachment 1.

Misinterpreting intent of the Planning Proposal

19. During the exhibition period, a number of submissions were received that raised issues that mistinterpreted the intent of the Planning Proposal. Issues raised included objecting to increases in building height, the potential for the Planning Proposal to further exacerbate traffic issues and pressure on infrastructure, such as schools.

20. Council Officers note that it is the intent of the Planning Proposal to respond to traffic congestion issues that were identified as part of the Epping Planning Review. The proposal does not ‘switch off Clause 4.6’ relating to maximum height through Clause 4.6. This mechanism will limit the opportunity for applications to seek additional density over and above the level already permitted under the relevant LEP. It will act to limit or cap requests for further density that might exacerbate issues Epping is experiencing related to increasing density of development.

Unfairly applies to future development and not past developments

21. Two submissions raised the concern that the ‘switching off’ of Clause 4.6 variations for FSR did not apply to past development and therefore unfairly apply to future development.

22. While it is acknowledged that the proposed ‘switching off’ would, if finalised by DPIE, apply to future development in the Epping Town Centre, the intent of the Planning Proposal is to address traffic issues that have arisen since the NSW Government’s rezoning in 2014, and the unprecedented rate of development in the Epping Town Centre since that time.

23. It is noted since 2015, development applications which have utilised Clause 4.6 have been in relation to building height, with FSR variations rarely exercising the provision. It is therefore not considered that the intended effect of the Planning Proposal would result in future development being subject to an unfair outcome; rather, the purpose of the Planning Proposal is to safeguard the anticipated growth in the Epping Town Centre within the currently allowable densities in the mapped planning controls.

24. In addition, the effectiveness of the proposed Clause 4.6 exemption will be reviewed after 3 years as per the sunset clause required in the Gateway Determination to assess the effectiveness of the clause.

Will adversely impact on the provision of commercial floorspace

25. Several submissions raised the potential adverse impact of the Planning Proposal on the provision of commercial floor space in new development in the Epping Town Centre.

26. It is considered that the intended effect of this Planning Proposal will not negatively impact on the current ability for commercial floor space to be delivered within the Epping Town Centre. The intention of this amendment is to limit the use of Clause 4.6 to prevent a level of floor space greater than that permitted by the FSR controls for the site for residential accommodation and tourist and visitor accommodation only. Therefore but it will not limit the opportunity for developments to utilise for additional floorspace for commercial floorspace purposes.

27. Furthermore the existing controls under both Hornsby LEP 2013 and Parramatta LEP 2011 allow for a suite of non-residential uses to be accommodated within developments in the B2 Local Centre zone. However, since the 2014 rezoning, new development within the B2 Local Centre zoning has resulted in the development of residential floorspace at the expense of existing commercial floorspace. There are no barriers to any appropriately zoned sites in Epping being completely developed for commercial purposes under the current controls.

28. It should be noted that In order to address the issue of loss of commercial floorspace in Epping Town Centre and to respond to an outcome of the Epping Planning Review, a planning proposal which mandates a proportion of floor space as commercial within a new development in the B2 Local Centre zone is currently being prepared by Council, and is considered in a separate report included in the same LPP business paper as this report.

29. Council Officers are also aware of a scenario related to the relationship between this Planning Proposal and the Commercial Floor Space Planning Proposal described above. Council Officers have had meetings with developers interested in developing sites in Epping who are broadly supportive of the Council proposal to mandate a minimum amount of commercial, with an associated additional floorspace.

30. If one of these developers was to lodge a development application that is consistent with Council’s proposed policy for commercial floor space, providing the required amount, Clause 4.6 would still be available as a mechanism to approve this prior to the Commercial Floor Space Planning Proposal being finalised. The finalisation of the Commercial Floor Space Planning Proposal could take 6-12 months given the need to obtain a Gateway Determination, exhibit the Planning Proposal and have Council consider all the submissions received.

31. As this Planning Proposal applies only to residential accommodation and tourist and visitor accommodation, Clause 4.6 would be open to an applicant to make an argument that a development application consistent with the Council commercial floor space policy and incorporating the additional FSR could still be approved prior to finalisation of the Commercial Floor Space Planning Proposal. The argument would be that the development would be consistent with Council’s commercial floor space policy, and Clause 4.6 would be a mechanism for the floor space variation to be considered.

32. In the light of the impact of COVID-19 Council has endorsed a number of measures and processes to seek to promote continuing development activity and delaying the approval of a development application that complies with Council’s policy position would be inconsistent with this direction.

Will undermine the objectives of the EP&A Act 1979

33. A number of submissions objected to the Planning Proposal on the grounds that switching off the Clause 4.6 variation for FSR would have the potential to undermine the objectives of the Environmental Planning and Assessment Act 1979 in relation to the objectives of promoting orderly economic use of land, and promoting good urban design and amenity for the built environment.

34. There is no evidence provided to suggest that the Planning Proposal will prevent development achieving these objectives. The objective can continue to be achieved via development consistent with the current development standards within the Hornsby and Parramatta LEPs.

Clause 4.6 variations are required to provide flexibility, and will reduce the viability of future development

35. A number of submissions raised concern that switching off the Clause 4.6 variation as it applies to FSR would reduce the flexibility to consider site specific constraints, and reduce the viability of future development.

36. It is noted that the approach of using Clause 4.6 variations to increase height controls is commonly used for applications for mixed use development applications since 2015 in the Epping Town Centre; however, variations to the FSR control through Clause 4.6 have rarely been exercised in this time. In cases where Clause 4.6 variation has been used to increase building height, it has been justified on grounds of improving urban design outcomes, and better responding to specific site constraints. Based on development activity in the Epping Town Centre, and the use of Clause 4.6 variations in these approvals, there is no evidence to suggest that switching off Clause 4.6 variations for FSR will impact on the future development of undeveloped sites.

37. The proposed restriction does not fetter the existing FSR controls currently available under Parramatta LEP 2011 or Hornsby LEP 2013. Hence, it has no impact on the housing supply in the Epping precinct or the housing target for the City of Parramatta Local Government Area as outlined in the Greater Sydney Commission’s Central City District Plan. Instead, it means additional floor space beyond the controls cannot be sought.

38. Furthermore, this Planning Proposal applies only to restricting an increase in density sought under Clause 4.6 residential accommodation and tourist and visitor accommodation. Therefore there are a range of other non-residential uses that may still avail of the Clause 4.6 FSR variation to development standard.

39. This proposed change has no effect on Section 4.55 (formerly Section 96) Modification Applications under the Environmental Planning and Assessment Act 1979 (Note: a Section 4.55 modification application allows minor modifications to be made to a consent when the development is demonstrated substantially the same development). Accordingly, modifications to FSR controls can still be made for a development application that seeks additional FSR above the control via a Section 4.55 modification application. Any such modification application would be considered on its merits, having regard to traffic and other issues and therefore any Section 4.55 modification seeking a significant increase in FSR about that permitted in the controls would be unlikely to be supported.

The Planning Proposal is an inefficient method for addressing traffic generation

40. The Planning Proposal was informed by the Epping Town Centre Traffic Study, which concluded that traffic will continue to deteriorate, even with potential local and State road improvements recently in place and further works proposed (for example the widening of Epping Road Bridge).

41. This Planning Proposal compliments a series of other actions Council is progressing to assist with addressing traffic issues in the Epping Town Centre including (but not limited to):

a) Reduction in car parking rates in the Parramatta DCP 2011 and Hornsby DCP 2013 (noting this was completed in 2019);

b) Identifying, costing and funding local road improvements that Council can deliver (noting that Council has included local improvements in its Draft Contributions Plan which was considered by Council on 30 November 2020);

c) Identifying State traffic and transport infrastructure improvements for Council to advocate for the NSW Government to deliver (noting that Council continues to advocate for identified improvements, e.g. 244 Beecroft Road state significant development application, following up on Epping Road Bridge widening project); and

d) Council’s current position that it will not support any Planning Proposal which seeks to deliver additional residential density (other than that allowable under existing controls), unless it seeks to address issues of the loss of commercial floorspace and heritage interface issues.

42. Therefore it is acknowledged that the proposed changes will not in of themselves address traffic and infrastructure provision issues within the town centre, but will work to help effect cumulative change and complement other strategic initiatives.

43. The ‘switching off’ of Clause 4.6 is considered a suitable means of achieving the intended outcome, which is to prevent variations to achieve additional residential and tourist and visitor accommodation floor space within the Epping town centre, which in turn would lead to an increase in traffic generation.

44. Council Officers do not consider that any changes are required to the Planning Proposal as a result of the submissions received.

FINANCIAL IMPLICATIONS FOR COUNCIL

45. Any work to progress the finalisation of the Planning Proposal would be prepared by Council Officers and therefore within the existing City Planning budget. The level of developer contributions paid could increase marginally if more development was permitted to be approved via Clause 4.6 variations but the costs / negative impacts associated with the additional development are likely to outweigh benefits the community would gain by expending these additional funds on local infrastructure, and so Council Officers consider that this impact is appropriate and consistent with Council’s strategic direction for the Epping Town Centre.

NEXT STEPS

46. Following Local Planning Panel consideration of the recommendations of this report, the outcomes of the exhibition period for this Planning Proposal will be reported to Council at an upcoming Council meeting along with the Panel’s advice.

47. Council does not have plan-making delegation for the subject Planning Proposal so Council will forward the Proposal to the Depatment of Planning Industry and Envrionment for the plan to be finalised so it comes into force.

CONCLUSION

48. Council Officers recommend that the Local Planning Panel support the Council officer recommendation that the Planning Proposal (as exhibited) be referred to the Department of Planning, Industry and Environment for finalisation.

Joshua Coy

Project Officer Land Use

Bianca Lewis

Team Leader Land Use Planning

Robert Cologna

A/Group Manager City Planning

David Birds

A/Executive Director Planning & Design

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