agenda of development committee 07/09 - 4 august 2009aug 04, 2009 · 2009. 2 2 clanwilliam st,...

Development Committee

AGENDA NO. 07/09

Meeting Date: Tuesday 4 August 2009 Location: Committee Room 3, Level 5, Civic Centre Time: 4.00pm

NOTICE OF BUSINESS Item CONFIRMATION OF MINUTES ...................................................................... 1 2 2 CLANWILLIAM ST, EASTWOOD. Lot 8 DP 5088. Application for

modification of consent for approved villa development - involving changes to landscaping and retention (instead of replacement) of fencing. LDA2007/0592. (Section 96 No. MOD2009/0041). INSPECTION 4.20PM / INTERVIEW 4.55PM.................................................. 2

3 40 TRELAWNEY STREET, EASTWOOD. Lot 34 DP 16433. Application to amend the approved alterations and additions to rear of dwelling including garage, storage area, kitchen, lounge, bedroom and deck LDA No. 2003/1268. Section 96 Ref MOD2009/0051. INSPECTION 4.35PM / INTERVIEW 5.00PM................................................ 17

Development Committee Page 1

Agenda of the Development Committee Report No. 07/09, dated Tuesday 4 August 2009.

1 CONFIRMATION OF MINUTES

File Number: COR2006/1529 - BP09/575

RECOMMENDATION: That the Minutes of the Development Committee No. 06/09 held on 21 July 2009, be confirmed.



2 2 CLANWILLIAM ST, EASTWOOD. Lot 8 DP 5088. Application for modification of consent for approved villa development - involving changes to landscaping and retention (instead of replacement) of fencing. LDA2007/0592. (Section 96 No. MOD2009/0041).

INSPECTION: 4.20pm INTERVIEW: 4.55pm

Report prepared by: Team Leader - Assessment Report approved by: Manager Assessment; Group Manager Environment &

Planning Report dated: 27 July 2009 File Number: lda2007/592/005 - BP09/571

The assessment contained in this report is a summary of the matters deemed relevant to this development proposal and matters contained in the Department of Planning Guide to Section 79C – Potential Matters for Consideration. 1. Report Summary Applicant: Ming Lin. Owner: Ming Lin & Qing R Deng. Date lodged: 14 April 2009. An application has been received to modify a consent for the villa development at the subject property. The modifications involve retaining the existing boundary fencing (instead of replacing it, as was required by condition 16), and replacing a small section of landscaping with concrete associated with the driveway and visitor parking space. This application raises concerns about retrospective approvals for works already carried out using the Section 96 modification process. In this regard, Council is able to approve such applications, and there have been numerous judgments in the Land and Environment Court dealing with this particular issue. Each proposal needs to be considered on merit, and may be approved if acceptable in terms of the usual planning considerations (e.g. streetscape, visual impacts, effects on neighbouring properties). The driveway and visitor parking location have been constructed in accordance with the DA approved architectural plans. There was an inconsistency between the architectural and the landscaping plans – the architectural plan was required to be amended during the DA to improve vehicle manoeuvring, resulting in a slight reduction in the amount of landscaping. The landscaping plans were never amended by the applicant and as such there is an inconsistency between the architectural plans and the landscaping plans. This application seeks to obtain approval for an amended landscaping plan that is consistent with the approved architectural plans. The application also proposes the retention of the existing boundary fencing (instead of replacement with new fencing). The existing fencing has different heights and colours, and such varied fencing detracts from the overall appearance of the development. Normally, boundary fencing is required to be replaced/upgraded at the

Development Committee Page 3 ITEM 2 (continued)


same time as development takes place, to ensure uniformity in new developments. It is considered that the proposal to retain the existing fencing should be refused. Council has notified neighbours of the proposed modifications, and 3 submissions were received. The submissions raise general concerns/frustrations including the practice of retrospective approval of works undertaken contrary to the approved DA plans, and the poor visual appearance of the existing fencing. Reason for Referral to Development Committee: Requested by Councillor Perram. Public Submissions: 3 submissions were received objecting to the development. SEPP1 Objection received: This application does not require the submission of a SEPP 1 objection. Value of works? Nominal value for the subject s96 application (original DA was $600,000). 2. Site (Refer to attached map.)

Address : 2 Clanwilliam St, Eastwood Site Area : 942m2

Frontage 19.81m Depth 47.55m Topography and Vegetation : The site has a gentle slope to the rear and contains no

significant vegetation. Existing Buildings : Recently completed urban housing (villa) development.

Planning Controls Zoning : Residential A in Ryde Planning Scheme 1979.

Other : Section 96(2) of the Environmental Planning and Assessment Act, 1979

Any Councillor Representations: Name of Councillor: Councillor Perram Nature of the representation: Call-up to Development Committee/other representations as follows.



Dates: 2 email representations as follows: • 13 May 2009: Councillor Perram was initially concerned that the required footpath

at the front of the site had not been provided (this work has since been done), and emailed the Councillor “Help Desk” to advise of these concerns.

• 8 June 2009: Councillor Perram made further representations of a more general

nature on behalf of local residents, raising concerns about the issue of seeking retrospective approval for work already undertaken contrary to the DA plans/consent. Email to Group Manager Environment & Planning to request call-up of the s96 application to the Development Committee to address this issue.

Form of the representation (e.g. via email, meeting, phone call): as above. On behalf of applicant or objectors? Objectors/general concerns as a local resident of the street. Any other persons (e.g. consultants) involved in or part of the representation: None. 3. Proposal This application proposes the following amendments: 1. Retention of the existing side boundary fencing. In terms of the consent, this

proposes modifications to conditions 1 (approved plans) and 16 (requiring new fencing as per DCP 2006).

2. Approval of an amended architectural plan that is consistent with the DA-

approved architectural plans in relation to the driveway width and visitor parking location. The driveway has already been constructed in accordance with the DA-approved architectural plans.

4. Background / Critical Dates 18 February 2008: Original consent was granted under delegated authority for an urban housing (villa) development containing 3 units. It is noted that during the assessment of the original DA, the plans were required to be amended to address issues of concern regarding vehicle manoeuvring and the location of the visitor parking space. Specifically, the visitor parking space was to be located near villa 3 (at the rear of the site), but this location did not allow vehicles to enter and leave the site in a forward direction. Vehicles would have needed to reverse for the entire length of the driveway (nearly 50m), which was not acceptable to Council’s Development Engineer.



The visitor parking space has been relocated to be adjacent to villa 1 and nearer to the front of the site, which has resulted in vehicle reversing being minimised. The width of the driveway was increased to cater for both the driveway and the visitor parking space. The landscaping plans were not updated to reflect the amended architectural plans (the current application seeks to achieve this conformity of plans). 22 January 2009: Application lodged under s96 of the Environmental Planning and Assessment Act, 1979 for minor modifications to the approved floor levels of the villa development. This previous s96 application was approved on 30 January 2009. 14 April 2009: The current s96 application was lodged, proposing the modifications described in Section 3 of this report above. After lodgement, the s96 application was advertised and notified to neighbours, and referred to Council’s Development Engineer. Further details of these processes are discussed later in this report. 5. Consultation – Internal and External Internal Referrals

Development Engineer: Advises that no objections are raised to the proposal in terms of Engineering issues. External Referrals None required. 6. Submissions: The proposal was advertised and notified in accordance with the Development Control Plan for Notification. The application was advertised on 30 April 2009. Notification of the proposal was from 30 April 2009 until 4 June 2009. 3 submissions were received. The issues raised in the submissions are summarised and discussed as follows: 1. Issues regarding the use of Section 96 to gain retrospective approval for

works already undertaken/contrary to the consent or approved plans. The replacement of the garden bed with concrete has already occurred without approval. This situation abuses/makes a mockery of Council’s development consent process and associated processes of resident and community consultation. Comment: Situations where s96 applications are lodged with Council seeking approval for works which have already been commenced or completed are relatively common.



The Land and Environment has given consideration to such applications. In Windy Dropdown v Warringah Council [2000] NSWLEC 240, Justice Talbot made the following comments:

“…the broad construction of s 96 leads to a practical result that enables a consent authority to deal with unexpected contingencies as they arise during the course of construction of development or even subsequently, provided of course that the development to which the consent as modified relates is substantially the same development. It follows from the foregoing analysis and reasoning that in my view an application that relates to development which has been already carried out can be made pursuant to s 96. The Court is therefore in a position to consider the subject application on the merits.”

Although these situations are frustrating, particularly for neighbours of development sites, Council is duty-bound to consider these applications on their merits, and deal with such applications in the same way as if the works had not been commenced/undertaken. Council is required to approve such applications if they are acceptable in terms of the usual planning considerations (e.g. visual impacts, effects on neighbouring properties, streetscape impacts), and provided the modifications are substantially the same development as originally approved. One of the reasons why it is necessary for Council to approve such applications is that private certifiers are unwilling/unable to issue the required certification (e.g. occupation certificates, subdivision certificates) if the development has not been completed in accordance with the approved plans. If the Section 96 application for retrospective approval is unacceptable (e.g. impacts on neighbouring properties or other issues which would mean that such an application should not be supported), then it should be refused and rectification work should be required to ensure compliance with the approved plans. However, this development has been constructed in accordance with the approved architectural plan, and approval is sought for an amended landscaping plan that is consistent with the architectural plans. The proposal to retain the existing (mostly colourbond) boundary fencing is not acceptable as further discussed in objection point No 3 below.


Agenda of the Development Committee Report No. 07/09, dated Tuesday 4 August

The extent of the additional paving is shown in the site plan below:

2. The landscaping is substandard. The selected plants are low-growing and will

not soften the appearance of the development. There are already excessive hard-surfaces, and replacing the garden bed on the eastern side with concreting will make this worse. Comment: The types of plant species used in the landscaping of this development are considered appropriate for the villa development, and the space available for landscaping along the edges of the driveway, and is similar to what has been used in other villa developments within the City. Along the edge of the driveway, Lomandra longifolia (spiny-head mat rush or basket grass) has been used. This type of plant normally grows to a height of up to 1m and is considered acceptable for use in this location. Adjacent to the visitor parking space (between the edge of the concrete and the wall of villa 1), Kunzea ambigua (tick bush) has been used. This type of plant has a mature height of between 2 and 3 metres. Both of these plants are indigenous to Australia, and are considered appropriate for use in this villa development having regard to the width of the driveway and the space available for landscaping.

2009.



In terms of the amount of pervious area, DCP 2006 requires a minimum of 35% (which equals 329m2 at this site which has an area of 942m2). The pervious area in the proposal (as originally submitted) was 336m2 or 35.6%. The subject amendments have added some 5m2 of additional concrete (hard surface) along the eastern boundary near the front of the site which has reduced the pervious area to be 331m2 or 35.1%. The amended pervious area complies with the 35% minimum in DCP 2006. The pervious area was calculated on the basis that the visitor space adjacent to villa 1 was to be provided with pervious pavers so that water can penetrate. The driveway appears to have been constructed entirely with stamped concrete, with no soft paving to the visitor parking space as was shown on the approved architectural plans. It is therefore recommended that any approval granted for this s96 application shall include a requirement that the concreted visitor parking space adjacent to villa 1 shall be replaced with pervious pavers, to ensure compliance with the minimum 35% pervious area requirement of DCP 2006. This requirement is reflected in the recommendation of this report. The photograph below shows the existing newly planted landscaping which has been provided in this development.

2009.



3. Proposed retention of existing fencing is unacceptable. There are several

properties adjoining the subject site No 2 Clanwilliam St, and the existing fencing has different heights and colours, which has a poor appearance and poor amenity for the neighbours. New fencing should be provided, to improve the aesthetics and uniformity of new developments. Comment: Agreed. As can be seen in the above photograph, the existing boundary fencing (which is generally the rear boundary of neighbouring properties), has varying heights and colours. Such fencing is now clearly visible from the street in Clanwilliam Street (it was obscured by the former dwelling), and this existing fencing detracts from the appearance of the development. It is generally considered that existing fencing should be upgraded in common with the renewal of housing stock as a result of the new villa development. The provision of new fencing will help to contribute to a degree of uniformity in the new development, and it is recommended that Council insists on the provision of new fencing in this development. The proposed retention of the existing fencing is not supported.

4. Issues during construction of the villa development. The objectors have

raised various concerns regarding physical construction issues – including working on Sundays, and failure to display the builder’s or principal certifying authority’s contact details. Comment: Although these concerns are valid, they are outside the scope of the assessment of this Section 96 application, and it is not possible to take enforcement action at this time (i.e. now that the development has been substantially completed) in relation to those issues. Generally, the Principal Certifying Authority and/or Council can only take enforcement action if these issues are reported at the time.

7. SEPP1 Objection received: This application does not require the submission of

a SEPP 1 objection. 8. Policy Implications Relevant Provisions of Environmental Planning Instruments etc: Ryde Planning Scheme Ordinance

Zoning

The proposed villa development is permissible with the consent of Council within the zoning of the property.



Mandatory Requirements

The only mandatory requirement in the RPSO relates to the minimum allotment size, and this aspect of the proposal is unchanged from when the original DA was assessed. Clause 56A states that an urban housing development requires a minimum site area of 300m2 per 1, 2, or 3 bedroom villa (i.e. minimum site area of 900m2 is required), and the site has an area of 942m2. The proposal fully complies with Council’s minimum site area requirements.

Matters for consideration pursuant to Section 96(2) EPAA: The provisions of Section 96(2) of the Environmental Planning and Assessment Act, 1979 allow a consent authority to modify the consent where the application meets the following criteria: -

(a) The development to which the consent as modified relates is substantially the

same development. (b) Any concurrence authority has been consulted and has not objected. (c) The application has been notified in accordance with the regulations. (d) Submissions made during the prescribed notification period have been

considered. Under Section 96 (2) (a) Council must be satisfied that the development as modified is substantially the same as was approved in the original consent. In arriving at this determination there should be no consideration of the merits of the proposal but rather a straight before and after comparison. If it is determined to be substantially the same then the proposed modifications need to be assessed on their merits having regard to submissions received and any relevant council planning controls. The current approval provides for an urban housing (villa) development of 3 units The proposed modifications only relate to the retention of existing boundary fencing (instead of the required replacement of such fencing); and also approval of an amended landscaping plan that is consistent with the approved architectural plans regarding driveway width and visitor parking space location. There will be no change to the height, the building footprint or the siting of the actual villa units.

It is considered that the modified development is substantially the same as the original and therefore the application can be considered on its merits. Section 96(2) (b) is not relevant to the current application, as concurrence was not required for the original approval. The proposal meets the requirements of 96(2) (c) and 96(2) (d) listed above, with the submissions received being considered elsewhere in this report.



Relevant SEPPs There are none that affect this application Relevant REPs There are none that affect this application Any draft LEPs There are none that affect this application The provisions of any Development Control Plan applying to the land. A full assessment was made in terms of compliance with the provisions of DCP 2006 (Part 3.6 Urban Housing) at the time of assessment of the original DA. This application seeks approval of an amended landscaping plan that is consistent with the approved architectural plans regarding driveway width and visitor parking space location. There will be no change to the height, the building footprint or the siting of the actual villa units. Accordingly it is not necessary to undertake further assessment of the proposal in terms of DCP 2006 at this time.

9. Likely impacts of the Development (a) Built Environment Issues regarding impacts on the built environment were addressed during the assessment of the original DA. The modifications proposed in this application are relatively minor and do not have significant adverse impacts. They are considered to be acceptable in terms of the Built Environment. (b) Natural Environment The proposed modifications will have minimal impact on the natural environment. 10. Management Plan Linkages Relationship to Key Outcome Areas

People This project meets the following key outcomes for People (set out on page 50 of the Management Plan 2009-2013):

P1 A vibrant city that is economically strong and engages its community through

cultural and social activities. P2 A city that plans for people by involving them in decision making to improve their

quality of life.

2009.



P3 A harmonious community through a culturally enriched and respectful society. Comment: Adjoining and nearby property owners have been involved in the decision making process through the neighbour notification of the DA plans. This assessment report, as well as details of the Development Committee’s consideration of this report and resolutions of Council, are all available to residents through Council’s website, and all people who made a submission to the DA will be notified of the outcome of Council’s decision.

Assets This project meets the following key outcomes for Assets (set out on page 60 of the Management Plan 2009-2013):

A1 Well designed streets and paths where motorists, cyclists and pedestrians feel

safe. A2 Well designed places and spaces that minimise personal harm and where

people interact with each other. A3 A high standard of visual appearance for our infrastructure, built environment

and public areas. Comment: Council’s Development Engineers have included conditions relating to restoration of Council’s footway areas (i.e. following driveway or footpath construction, etc). As noted previously (see Councillor representations), there were some concerns regarding the provision of a new footpath at the front of the site, however this has now been provided as required by the conditions of the development consent.

Environment This project meets the following key outcomes for Environment (set out on page 69 of the Management Plan 2009-2013):

E1 Clean air through better integrated transport systems. E2 Clean water through control of pollution entering our waterways and through

protection of these waterways. E3 Preserved natural ecological systems and areas. E4 Strong links to the past through protection, conservation and interpretation of

our heritage. E5 A leafy City through parks, gardens, trees and the built environment. E6 Sustainable practices in buildings, waste management, transport, energy

systems and water use. Comment: Most of these key outcomes are not applicable to an individual development proposal, although it is noted that the DA documentation has included a compliant BASIX Certificate which indicates that the development meets the required targets for energy and water efficiency.

2009.



Governance This project meets the following key outcomes for Governance (set out on page 79 of the Management Plan 2009-2013):

G1 Improved awareness and understanding of Council’s decisions by the

community. G2 Members of the community are engaged in democratic decision making. G3 Review of best practice approaches on Governance to enhance the delivery of

services to the community. G4 A safe working environment with skilled and motivated staff who are committed

to the organisation’s vision and values. G5 Compliance with all legislative requirements and statutory obligations. G6 An efficient and effective regulatory environment. Comment: Adjoining and nearby property owners have been involved in the decision making process through the neighbour notification of the DA plans (original proposal and subsequent amendments). This assessment report, as well as details of the Development Committee’s consideration of this report, is available to all residents through Council’s website, and all people who made a submission to the DA will be notified of the outcome of Council’s decision. 11. Financial Impact Adoption of the option(s) outlined in this report will have no financial impact. 12. CONCLUSION: The proposed modifications regarding the amended landscaping plan are relatively minor. The landscaping and driveway/visitor parking have been constructed in accordance with the approved architectural plans. Approval of the amended landscaping plan is requested, in order to ensure conformity with the approved architectural plan, and also to achieve improved safety and vehicle manoeuvring on the driveway servicing the parking spaces. The proposal to retain existing boundary fencing is not considered to be acceptable as such fencing (which is mostly the rear boundary fencing of neighbouring properties) has varying heights and colours, and an unacceptable visual appearance now that it is visible from the front of the subject site. Previously such fencing was obscured by the former dwelling. It is recommended that this aspect of the application be refused.

2009.



RECOMMENDATION: (a) That the Section 96 application No. MOD2009/0041 to modify Local Development

Application No. 2007/592 at 2 Clanwilliam St, Eastwood, being Lot 8 DP 5088, be approved in the following manner:

• Condition 1 is amended by adding Landscaping Plan No L01/1-R12415 dated

5 July 07 (received by Council 14 April 2009) to the list of approved plans. NOTES: 1. All references on the approved landscaping plan to the retention of

“existing” fencing are deleted as shown in red on the approved plan. 2. The proposed retention of existing boundary fencing is refused. New

boundary fencing is required to be provided in accordance with condition 16 of Consent No 592/2007.

3. The concreted visitor parking space (minimum 6m long x 3m wide) adjacent to villa 1 shall be removed and replaced with pervious pavers to ensure compliance with the minimum 35% pervious area requirement of DCP 2006.

• ALL other conditions remain unaltered and must be complied with.

(b) That the persons who made submissions be advised of Council's decision. ATTACHMENTS 1 Map 2 Plans Report Prepared By: Chris Young Team Leader - Assessment Report Approved By: Liz Coad Manager Assessment Dominic Johnson Group Manager Environment & Planning

Development Committee Page 15 ITEM 2 (continued) ATTACHMENT 1


2009.

Development Committee . Page 16 ITEM 2 (continued) ATTACHMENT 2


2009.



3 40 TRELAWNEY STREET, EASTWOOD. Lot 34 DP 16433. Application to amend the approved alterations and additions to rear of dwelling including garage, storage area, kitchen, lounge, bedroom and deck LDA No. 2003/1268. Section 96 Ref MOD2009/0051.

INSPECTION: 4.35pm INTERVIEW: 5.00pm

Report prepared by: Assessment Officer Report approved by: Manager Assessment; Group Manager Environment &

Planning Report dated: 27 July 2009 File Number: lda2003/1268/005 - BP09/572

The assessment contained in this report is a summary of the matters deemed relevant to this development proposal and matters contained in the Department of Plannings' Guide to Section 79C – Potential Matters for Consideration. 1. Report Summary Applicant: Pragmatic Designers. Owner: Grant Ogilvie & Karen James. Date lodged: 4 May 2009. This report considers a Section 96(1A) application to amend Council’s development consent (LDA2003/1268, approved 10/08/2004) for “Alterations and additions to rear of dwelling including garage, storage area, kitchen, lounge bedroom and deck”. The section 96 (1A) application seeks to make the following amendments to the approved plans:

• repositioning of rear stair case; • replacement of two northern elevation bedroom windows with a single window

measuring 700mm x 1200mm; • reduce size of northern elevation bedroom window to measure 1200mm x

700mm; • raise height by 250mm (25cm) of part of the rear deck located adjacent to the

dining room to match the height of the remainder of the deck; • reduce size of rear elevation dining room window to measure 2100mm x

1402mm; • replace rear living room french doors with bi-fold doors with measuring

2100mm x 2340mm; • remove central rear window to living room and replace with brick wall; • change style of rear lounge room windows to single panes; • reduce size of south elevation kitchen window to measure 1570mm x 843mm; • reduce size of south elevation lounge/dining room window to measure 905mm

x 1200mm with glazing obscured glass to height of 1.5m above finished floor level;

• the addition of two highlight windows measuring 1200mm by 600mm to south elevation of the garage;



• replace stainless steel wire balustrade with glass panels; and • modification of rear garage door to incorporate a 3m wide “tilt-a-door”.

The proposed modifications are considered to be substantially the same development in terms of the relevant provisions of the Environmental Planning and Assessment Act, 1979 being alterations and additions to the dwelling. At the time of inspection, construction of the proposed modifications had been substantially commenced and/or partially completed. The proposal was notified in accordance with Development Control Plan 2006 - Part 2.1, Notification of Development Applications. A total of five (5) submissions were received from properties to the rear of the site fronting Buena Vista Avenue in response to the first notification period. Of these, two (2) were from number 39 Buena Vista Avenue. Five (5) further submissions were received in response to the second notification period of revised plans. Of these, two (2) were received from number 39 Buena Vista Avenue. The main issues of concern relate to privacy, noise and character/appearance. As a direct result of the issues raised in the submissions, the proposal was referred to Council’s Heritage Advisor and Environmental Health Officer for specialist comments and their comments are included in the body of this report. On balanced consideration of the comments from Council’s Heritage Advisor and Environmental Health Officer, the existing Development Consent, Council’s current planning controls and the submissions received, the proposed modifications are considered to be minor in nature and acceptable. Reason for Referral to Development Committee: Requested by Councillor Perram and Councillor Petch. Public Submissions: Five (5) submissions were received (from four [4] properties)

objecting to the development in response to the first notification period. Five (5) submissions were received (from four [4] properties) raising concerns regarding the revised plans.

SEPP1 Objection: Not received. Value of works: $80 000 2. Site (Refer to attached map.)

Address : 40 Trelawney Street, Eastwood Site Area : 850.18m2

Frontage 12.8 metres



Topography and Vegetation : The level of the site falls from the front to the rear. Existing Buildings : The site contains an existing part single and part two

storey dwelling of brick and tile construction.

Figure 1 – Aerial photograph of the subject site and surrounds.

Planning Controls Zoning : Residential ‘A’ - Ryde Planning Scheme Ordinance.

Other : Section 96(1A) of the Environmental Planning and Assessment Act, 1979.

City of Ryde Development Control Plan 2006 Any Councillor Representations: 1. Name of Councillor: Councillor Perram. Nature of the representation: Request for the application to be considered by Development Committee as the proposed amendments are constructed or are being constructed. Date: 9 July 2009. Form of the representation: Emails to Group Manager. On behalf of: Residents of 39 Buena Vista Avenue. Any other persons (e.g. consultants) involved in or part of the representation: Nil.

2009.



2. Name of Councillor: Councillor Petch. Nature of the representation: Request for the application to be considered by Development Committee. Date: 9 July 2009. Form of the representation: Representation to Group Manager. On behalf of: Unknown. Any other persons (e.g. consultants) involved in or part of the representation: Nil. 3. Proposal Modification pursuant to Section 96 (2) of the Environmental Planning and Assessment Act, 1979 of the approved Ground Floor Additions To Rear Of Dwelling + Deck & Garage Alterations And Additions To Rear Of Dwelling Including Garage, Storage Area, Kitchen, Lounge, Bedroom And Deck.. The proposal involves the following modifications: -

• repositioning of rear stair case; • replacement of two northern elevation bedroom windows with a single window

measuring 700mm x 1200mm; • reduce size of northern elevation bedroom window to measure 1200mm x

700mm; • raise height by 450mm (45cm) of part of the rear deck located adjacent to the

dining room to match the height of the remainder of the deck; • reduce size of rear elevation dining room window to measure 2100mm x

1402mm; • replace rear living room French doors with bi-fold doors measuring 2100mm x

2340mm; • remove central rear window to living room and replace with brick wall; • change style of rear lounge room windows to single panes; • reduce size of south elevation kitchen window to measure 1570mm x 843mm; • reduce size of south elevation lounge/dining room window to measure 905mm

x 1200mm with glazing obscured glass to height of 1.5m above finished floor level;

• the addition of two highlight windows measuring 1200mm by 600mm to south elevation of the garage;

• replace stainless steel wire balustrade with glass panels; and • modification of rear garage door to incorporate a 3m wide “tilt-a-door”.



Proposed – Rear Elevation Approved – Rear Elevation

2009.



4. Background 10 August 2004 - Council issued Deferred Commencement Consent to LDA2003/1268 for “Alterations and additions to rear of dwelling including garage, storage area, kitchen, lounge bedroom and deck”. 23 February 2005 - Council granted consent to a Section 96(1) application (Council reference: S96 application 2003/1268.2) to allow an additional 6 months for the applicant to satisfy the Deferred Commencement Consent Requirements. 10 March 2005 - Council advised the applicant that the matters referred to Part 1 of Consent LDA2003/1268 had been satisfied and the Consent from this date had become operative. 28 April 2008 - Council granted consent to Section 96 application (Council reference S96 2003/1268.3) to modify the Development Consent LDA2003/1268 in the following manner:

• demolish existing garage and existing deck; • extend garage level to provide for a laundry, toilet and new internal stair well; • retain windows existing in western elevation; • delete external door with stairs in western elevation; • modify design of windows to new bedroom on western elevation; and • raise height of kitchen window in eastern elevation.

4 May 2009 - This Section 96(1A) application (MOD 2009/0051) is the third Section 96 application seeking to modify the development consent LDA lodged on 4 May 2009. 3 July 2009 - The applicant submitted modified plans to Council containing corrections to the labels and the levels annotated on the drawings, there were no modifications to the architectural design of proposal. The application was renotified in accordance with Council Notification DCP for a two week period ending on 27 July 2009. REPORT 5. Management Plan Linkages N/A



6. Relationship to Key Outcome Areas

People This project meets the following key outcomes for People (set out on page 49 of the Management Plan 2009-2013):

P1 A vibrant city that is economically strong and engages its community through

cultural and social activities. P2 A city that plans for people by involving them in decision making to improve their

quality of life. P3 A harmonious community through a culturally enriched and respectful society. Comment: Adjoining and nearby property owners have been involved in the decision making process through the neighbour notification of the proposed plans. This assessment report, as well as details of the Development Committee’s consideration of this report and resolutions of Council, are all available to residents through Council’s website, and all people who made a submission to the DA will be notified of the outcome of Council’s decision.

Assets This project meets the following key outcomes for Assets (set out on page 60 of the Management Plan 2009-2013):

Comment: This matter has no direct relationship to this key outcome area.

Environment This project meets the following key outcomes for Environment (set out on page 69 of the Management Plan 2009-2013):

E1 Clean air through better integrated transport systems. E2 Clean water through control of pollution entering our waterways and through

protection of these waterways. Comment: The proposal was considered in light of applicable planning controls. Conditions have been recommended within the current consent to control impacts.

Governance This project meets the following key outcomes for Governance (set out on page 79 of the Management Plan 2009-2013):

G1 Improved awareness and understanding of Council’s decisions by the

community. G2 Members of the community are engaged in democratic decision making. G3 Review of best practice approaches on Governance to enhance the delivery of

services to the community. G4 A safe working environment with skilled and motivated staff who are committed

to the organisation’s vision and values.

2009.



G5 Compliance with all legislative requirements and statutory obligations. G6 An efficient and effective regulatory environment. Comment: Adjoining and nearby property owners have been involved in the decision making process through the neighbour notification of the plans (original proposal and subsequent amendments). This assessment report, as well as details of the Development Committee’s consideration of this report, are available to all residents through Council’s website, and all people who made a submission to the DA will be notified of the outcome of Council’s decision. 7. Consultation – Internal and External Internal Referrals

Development Engineer, 2 July 2009: Council’s Development Engineer has noted that the proposal does not involve an increase the site cover/impervious areas and that the existing conditions still apply. Heritage Advisor, 21 August 2009: Council’s Heritage Advisor has commented: “Assessment: The existing and proposed minor works have been assessed as to their impact on the public domain of the Denistone Character area, with particular reference to Trelawney St and Buena Vista Ave. From Trelawney St. none of the works are visible with the bulk and detail of the original dwelling remaining intact. From Buena Vista Ave, the rear of the dwelling at no. 40 is at a high elevation from the street, and is only marginally visible between dwellings at 35 and 37, and 39 and 41, and is considered to have minimal impact on the architectural character of Buena Vista Ave. The details of the construction are sympathetic to the original house including matching brickwork colour and texture, splayed brick window sill details, and use of painted timber windows and doors. The incorporation of timber bi-fold doors and glass balustrading to the deck, to the rear of the dwelling while not original architectural details, are not visible from either Trelawney St. and Buena Vista Ave., and are considered acceptable details to use at the rear of the property. Recommendation: The work be carried out in accordance with the Conditions of Consent 1268/2003, in particular, Part 2, conditions 4, 5 and 6. Condition 4 and 5 of the existing consent requires: “4 All new windows are to be timber framed.” “5 All new work is to match that of the existing house in accordance with the

detail. The face brick is to match the existing brickwork and no render is to be used.”



It is noted that existing Condition No.6 is a repeat of Condition No.5. Geotechnical Engineer, 22 August 2009: Council’s Consultant Geotechnical Consultant has raised no objection to the proposed modifications and advised the proposal has no impact on the previous advice. Environmental Health Officer, 22 August 2009: Council’s Environmental Health Officer has advised that the openable area of the doors and windows is essentially unchanged and is unlikely to have any impact on the transmission of noise. External Referrals Nil. 8. Submissions: The proposal was first notified in accordance with the Development Control Plan for Notification. Notification of the proposal was from 27 May 2009 until 11 June 2009. Five (5) submissions were received (from four [4] properties) in response to the first notification period. Following the applicant submitting amended plans correcting the levels and labelling of the proposed plans the application was renotified in accordance with the Development Control Plan for Notification. In response to the second notification period five (5) submissions were received (from four [4] properties). The applicant has submitted a written response to the matters raised in the submissions from the first notification period and for the information of Committee this response is CIRCULATED UNDER SEPARATE COVER. The issues raised in the submissions are summarised as follows: 1. The proposed modifications are currently under construction and nearing

completion. It appears consent for the proposed modifications is being sought retrospectively.

Comment: The Land and Environment has given consideration to such applications. In Windy Dropdown v Warringah Council [2000] NSWLEC 240, Justice Talbot made the following comments:

“…the broad construction of s 96 leads to a practical result that enables a consent authority to deal with unexpected contingencies as they arise during the course of construction of development or even subsequently, provided of course that the development to which the consent as modified relates is substantially the same development.



It follows from the foregoing analysis and reasoning that in my view an application that relates to development which has been already carried out can be made pursuant to s 96. The Court is therefore in a position to consider the subject application on the merits.”

Although these situations are frustrating, particularly for neighbours of development sites, Council is duty-bound to consider these applications on their merits, and deal with such applications in the same way as if the works had not been commenced/undertaken. Council is required to approve such applications if they are acceptable in terms of the usual planning considerations (e.g. visual impacts, effects on neighbouring properties, streetscape impacts), and provided the modifications are substantially the same development as originally approved. One of the reasons why it is necessary for Council to approve such applications is that private certifiers are unwilling/unable to issue the required certification (e.g. occupation certificates, subdivision certificates) if the development has not been completed in accordance with the approved plans.

If the Section 96 application for retrospective approval is unacceptable (e.g. impacts on neighbouring properties or other issues which would mean that such an application should not be supported), then it should be refused and rectification work should be required to ensure compliance with the approved plans. During a recent inspection of the site it was apparent that significant proportion of the proposed modifications had been commenced and/or completed. Making an application to amend an existing development consent retrospectively is permissible and in itself is not a valid reason for refusal. 2. The proposed modifications will result in a loss of privacy (to the properties to

the rear of the site) at No’s 35, 37 and 39 Buena Vista Avenue. Comment: The proposal seeks to raise the height of the northern end of the rear deck by 450mm to make it level with the remainder of the approved deck. The privacy impact of raising the northern end of the deck for properties adjoining to the rear (fronting Buena Vista Avenue) are not considered significant or unacceptable as:

• very similar views can already be gained from the approved southern end of the deck in relation to the properties at the rear of the site fronting Buena Vista Avenue;

• the existing boundary fence, trees and vegetation at the rear of the site act to largely screen the limited views of the rear windows of the dwellings to the rear;

• the subject deck is set back a distance of approximately 14 metres from the rear boundary of the properties at No.37 and No.39 Buena Vista Avenue;

• the fall of the site to the rear and the level of the rear deck allow only a very limited angle for any potential overlooking; and



• the subject site and the properties to the rear are located within the

Residential A zone and it is considered unreasonable to expect no potential for limited, distant, and partially obscured views from a neighbouring property.

2009.

Approved – Site Plan Proposed - Site Plan


Approved - North Elevation


Proposed – North Elevation 3. Additional noise to dwellings at No’s 35, 37, 39 and 43 Buena Vista is already

evident. The previous windows and doors were a better noise barrier and the proposed retractable bi-fold doors open up allowing noise to travel down the hill from the media room, kitchen/family/dining room adjoining the deck. The doors at the rear also encourage the greater use of the rear deck.

Comment: There has been no evidence submitted to demonstrate that the proposed modifications to the approved windows and doors at the rear of the dwelling have/will increase the level of noise received by the dwellings to the rear of the site.



At the time of inspection the proposed modifications were under construction there was no furniture within the rear living rooms and it appeared that they were not being used for residential purposes. It is considered that any noise possibly emanating from the rear of dwelling would be construction phase noise that would not reflect normal use of the rear living areas. Irrespective of this, it is considered the proposed windows and doors should not have any unacceptable impact in relation to noise transmission. It is noted the use of the rear deck is likely to allow for a greater transmission of noise which is also not considered unreasonable within a residential area. Council’s Environmental Health Officers have advised that the openable area of the doors and windows is essentially unchanged by this proposal and is unlikely to have any impact on the transmission of noise. 4. The proposal seeks to utilise glass panel balustrade for the rear deck. Design

of the new hand rail is not in keeping with Denistone Character Area and the age of the dwelling.

Comment: The balustrade for the deck on the approved plans incorporates stainless steel wire to fill in the 1.0m high timber/metal railings. The proposed amended plans maintain the 1.0m timber/metal railings but seek to incorporate glass infill panels for the balustrade. Council’s Heritage Advisor has commented, in part; “The incorporation of timber bi-fold doors and glass balustrading to the deck, to the rear of the dwelling while not original architectural details, are not visible from either Trelawney St. and Buena Vista Ave, and are considered acceptable details to use at the rear of the property.” In view of the comments of Council’s Heritage Advisor it is considered the proposed glass panels are acceptable for use at the rear of the property from a Heritage perspective. 5. Suggested solutions involve the applicant being required to revert to the

existing approved windows and French doors. Demolish and lower the level rear deck or at the cost of the owners of 40 Trelawney Street construct a privacy screen across the rear of the property at 37 and 39 Buena Vista.

Comment: For the reasons detailed above and elsewhere in this report it is considered both unreasonable and unnecessary to require the applicant to revert to the approved windows, doors and to lower the level of the northern portion of the rear deck. The erection of a privacy screen is also considered unnecessary in this instance (See Figure 2 below).



Figure 2 - View to rear from northern portion of deck towards Buena Vista Avenue properties. 6. Concerns regarding notification of revised plans (second notification period). Comment: A submission was received from the residents of 39 Buena Vista Avenue advising the following:

“We have received your Council's letter, dated 13 July, 2009, regarding the above application, with a number of attached plans. Previous letters regarding this and other proposals which had plans attached, had all plans stamped in red by Council thus "AMENDED PLANS <<date>>". The plans attached to the Council's letter dated 13 July, 2009, are not stamped in this manner, so we cannot determine if these are the correct amended plans to which the letter refers. Could you have the Council officers re-issue the letter to all those notified with the appropriately stamped plans please? Once we have a copy of the stamped plans we will be in a position to respond.”

2009.



The following is an extract from a response sent Monday 20 August 2009:

“Whilst it is understood these drawings did not have an 'amended plans' stamp on them please note the following: - there was no change to the architectural design of the proposal, the

changes only corrected the labelling and levels annotated on the drawings;

- the plans are each clearly dated 2.07.09 (whereas the original plans were clearly dated 28.04.09); and

- the notification letter attached to the plans clearly detailed each of the -modifications to the plans.

In view of the above points the modified plans are not considered to be ambiguous and the need to further renotify the same plans (with the stamp on them) is considered unnecessary in this instance. Your email will be treated as an additional submission and will be referred to in the report to be placed before Development Committee. For your information attached to this email is a scanned copy of the revised plans with the date clearly highlighted for your reference.”

9. SEPP1 Objection received? Not required. 10. Policy Implications Relevant Provisions of Environmental Planning Instruments etc: Ryde Planning Scheme Ordinance Zoning The modification of the approved alterations and additions to rear of dwelling including garage, storage area, kitchen, lounge bedroom and deck are permissible within the Residential 'A' zone, subject to the approval of Council. Mandatory Requirements The proposal is not affected by any provisions of the Ryde Planning Scheme Ordinance other than any matters that are discussed elsewhere within the body of this report.



Matters for consideration pursuant to Section 96(2) EPAA: The provisions of Section 96(1A) of the Environmental Planning and Assessment Act, 1979 allow a consent authority to modify the consent where the application meets the following criteria: -

(a) The development to which the consent as modified relates is substantially the

same development. (b) The application has been notified in accordance with the regulations. (c) Submissions made during the prescribed notification period have been

considered. Under s96(1A) Council must be satisfied that the development as modified is substantially the same as was approved in the original consent. In arriving at this determination there should be no consideration of the merits of the proposal but rather a straight before and after comparison. If it is determined to be substantially the same then the proposed modifications need to be assessed on their merits having regard to submissions received and any relevant council planning controls. The current approval allows for alterations and additions to rear of dwelling Including garage, storage area, kitchen, lounge, bedroom and deck. The proposed modifications relate to alterations and additions to rear of dwelling Including garage, storage area, kitchen, lounge, bedroom and deck. There will be no discernible change to the height, the building footprint remains the same and none of the key elements are changed.

It is the opinion of Council’s assessing officer that the modified development is substantially the same as the original and therefore the application can be considered on its merits. Section 96(2) is not relevant to the current application, as concurrence was not required for the original approval. The proposal meets the requirements of 96(1A) listed above, with the submissions received being considered later in this report. Relevant SEPPs There are none that affect this application. Relevant REPs There are none that affect this application. Any draft LEPs There are none that affect this application.



Any DCP Following is an assessment of the relevant provisions of the DCP 2006 Part 3.3 Dwelling Houses and Duplex Dwellings. Section 2.13.2 Visual Privacy Section 2.13.2(a). “Orientate the windows of the main internal living spaces such as living rooms, dining rooms, kitchens, family rooms and the like, generally to the front or to the rear of allotments.” Comment: The proposed modifications are considered to comply. Section 2.13.2(b). “Orientate terraces, balconies and outdoor living areas to either the front or the rear of allotments, and not to the side boundaries.” Comment: The proposed modifications and considered to comply. Section 2.13.2(c). “Terraces and balconies are not to overlook neighbours living areas and private open space.” Comment: The proposed modifications are considered to comply. Section 2.13.2(d). “Living room and kitchen windows, terraces and balconies are not to allow a direct view into neighbouring dwellings or neighbouring private open space.” Comment: The proposed modifications are considered to comply. Section 2.12.3 Acoustic Privacy Section 2.13.3 (Acoustic Privacy) contains no specific controls for residential noise which is not generated by an air conditioner, pump, or other mechanical equipment. Section 3.2.2 Denistone Character Area Section 3.2.2(a). ‘New development is to be consistent with the characteristics described in the key character statement.” and; Section 3.2.2(b).”New development is to be compatible with the existing streetscape.” As detailed in the ‘Internal Referrals’ section of this report Council’s Heritage Advisor has raised no objection to the proposed modifications.



11. Likely impacts of the Development (a) Built Environment Issues regarding impacts on the built environment were addressed during the assessment of the original DA. The modifications proposed in this application are relatively minor and do not have significant adverse impacts. They are considered to be acceptable in terms of the Built Environment. (b) Natural Environment The proposed modifications do not seek to modify the landscaping or any other matters outside the building area. The proposed modifications will have minimal impact on the natural environment. 12. Financial Impact Adoption of the option(s) outlined in this report will have no financial impact. Other Options Another option would be to refuse the proposed modifications and require compliance with the previously approved plans. This option is considered unreasonable and unnecessary in this instance for the reasons detailed in this report. 13. CONCLUSION: On balanced consideration of the comments from Council’s Heritage Advisor and Environmental Health Officer, the existing Development Consent, Council’s current planning controls, and the submissions received, the proposed modifications are considered to be minor in nature and should not have any unacceptable impacts on surrounding properties. RECOMMENDATION: (a) That the Section 96 application to modify Local Development Application No.

MOD2009/0051 at 40 Trelawney St Eastwood being Lot 34 DP 16433 be approved subject to the modification of Condition 1 as follows:

1. Development is to be carried out in accordance with Drawing No’s 1 to

7 date plotted 02.07.09, prepared by Pragmatic Designers Pty Ltd and support information submitted to Council.

All other conditions remain unaltered and must be complied with.

(b) That the persons who made submissions be advised of Council's decision.



ATTACHMENTS 1 Map 2 Plans 3 Original deferred commencement consent issued 10 August 2004 Report Prepared By: Paul Mills Assessment Officer Report Approved By: Liz Coad Manager Assessment Dominic Johnson Group Manager Environment & Planning



2009.

agenda of development committee 07/09 - 4 august 2009aug 04, 2009 · 2009. 2 2 clanwilliam st,...

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