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Item 10.2 - Attachment
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Section 79c Report |
Parramatta City Council
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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,
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:
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: 1626m˛
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
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
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
It is the responsibility of the property owner to carry out maintenance
work between the courtyard fence and dividing fence.
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Issue |
Submissions |
Comments |
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Yes |
No |
N/A |
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Amended
Plans:- |
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Have amended
plans been submitted since the original application was made? |
x |
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Summary of
amendments made |
x |
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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. |
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Were amended
plans re-advertised or re-notified? |
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x |
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No, the
amended plans were not notified. |
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Reason why
they were/were not re-advertised or re-notified? |
x |
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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.
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Proposed
modification |
Compliance with SREP – car parking |
Compliance with PLEP and PDCP 2001 |
Maintains residential amenity |
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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. |
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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. |
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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.
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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:
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Drawing N0 |
Dated |
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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 |
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First Floor Plan detailed by design
effect. Issue F |
14 August 2010 |
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Basement Floor Plan detailed by design
effect. Issue F |
14 August 2010 |
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Attic Floor Plan detailed by design
effect. Issue F |
14 August 2010 |
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Site Management Plan detailed by design
effect. Issue F |
14 August 2010 |
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Elevation Plan detailed by design effect.
Issue F |
14 August 2010 |
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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 |
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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
