D-PLAN URBAN PLANNING CONSULTANTS PTY LTD PO Box 201 Liverpool NSW 1871 Ph: (02… · 2020. 9....

D-PLAN URBAN PLANNING CONSULTANTS PTY LTDPO Box 201 Liverpool NSW 1871

Ph: (02) 9802 5030 Mob: 0410 331 467 E-mail: [email protected]

www.dplan.com.au

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CLAUSE 4.55 (1A) MODIFICATION INVOLVING MINOR INTERNAL &

EXTERNAL CHANGES & RETENTION OF ORIGINALLY

NOMINATED FINISHED FLOOR LEVELS

44 NEWTON ROAD, STRATHFIELD (LOT 3 DP 14613)

27/8/2020

D-Plan Urban Planning Consultants Pty Ltd

TABLE OF CONTENTS 1.0 EXECUTIVE SUMMARY 1 2.0 SITE DESCRIPTION 2 3.0 THE PROPOSAL 3 4.0 STATUTORY REQUIREMENTS 9 4.1 Environmental Planning & Assessment Act 1979 9 4.1.1 Environmental Impact 10 Streetscape 10 Bulk & Scale 10 Overshadowing 11 Privacy 11 Drainage 11 Landscaped Area 11 Floor Space Ratio 11 Private Open Space 11 4.1.2 Substantially the Same Development 12 5.0 CONCLUSION 13

ATTACHMENTS

1. Determination Notice

D-Plan Urban Planning Consultants Pty Ltd Page 1

1.0 EXECUTIVE SUMMARY This submission accompanies the *Clause 4.55(1A) Application, which seeks to amend a recent development consent involving Demolition of the existing buildings and construction of a single dwelling with basement level, inground pool, front boundary fencing and associated landscaping (DA - 2018/112 – issued on 17th January 2019 – see Attachment 1). The modifications involve:

❖ Minor alterations to the internal layout; ❖ Slightly lowering the external ground level in the rear yard to RL 28.85 as per

Engineers recommendation; ❖ Relocate inground swimming pool closer to the dining room; ❖ Minor modification to the Alfresco; ❖ Deletion of balcony from main bedroom; ❖ Window placement and scheduling; ❖ New BASIX Certificate; ❖ Deletion of Condition 2A (i.e., retaining the originally nominated finished floor

levels as compliance with Condition 2A is technically not possible due to the flood characteristics of the site); and

❖ Amend Condition 3 to reflect the “As Modified” Plans.

This Statement demonstrates that the modifications will not cause any significant adverse environmental impact, remaining in essence substantially the same development as approved. * Note: Clause 4.55 (1A) [previously Section 96(1A)] of the Environmental Planning and Assessment Act 1979


2.0 SITE DESCRIPTION

The subject land, No. 44 (Lot 3 DP 14613) Newton Road, Strathfield is located on the southeastern corner of Newton Road and Myrna Road. The site has a frontage of 11.38m (excluding splay) and a length of 42.67m, comprising a total site area of 610.67m2.

© Universal Publishers Pty Ltd

Locality Plan


3.0 THE PROPOSAL

It is proposed to modify the existing consent as follows:

❖ Minor alterations to the internal layout; ❖ Slightly lowering the external ground level in the rear yard to RL 28.85 as per

Engineers recommendation; ❖ Relocate inground swimming pool closer to the dining room; ❖ Minor modification to the Alfresco; ❖ Deletion of balcony from main bedroom; and ❖ Window placement and scheduling.

Other Amendments

❖ New BASIX Certificate; ❖ Deletion of Condition 2A (i.e., retaining the originally nominated finished floor

levels as compliance with Condition 2A is technically not possible due to the flood characteristics of the site); and

❖ Amend Condition 3 to reflect the “As Modified” Plans.


Artistic Impression (Original Approval)

Artistic Impression (As Amended)


Newton Road Elevation (Original Approval)

Newton Road Elevation (As Modified)


Approved Plan (Rear Elevation)

As Modified Plan (Rear Elevation)


Approved Plan (Myrna Road Elevation)

As Modified Plan (Myrna Road Elevation)


Approved Plan (Side Elevation)

As Modified Plan (Side Elevation)


4.0 STATUTORY REQUIREMENTS

4.1 Environmental Planning & Assessment Act 1979 Under the provisions of Clause 4.55 (1A) (previously S96 (1A)) of the EP&A Act 1979, Council can modify the consent subject to the following:

4.55 (1A) Modifications involving minimal environmental impact A consent authority

may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if:

(a) it is satisfied that the proposed modification is of minimal environmental impact,

and (b) it is satisfied that the development to which the consent as modified relates is

substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and

(c) it has notified the application in accordance with: (i) the regulations, if the regulations so require, or (ii) a development control plan, if the consent authority is a council that has

made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

(d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be.

Subsections (1), (2) and (5) do not apply to such a modification.


4.1.1 Environmental Impact In King, Markwick, Taylor & Ors v Bathurst Regional Council [2006] NSWLEC 505 at [84], “minimal”, in the context of Section 96 was construed as taking its ordinary meaning of “very small” or “negligible”. The “minimal” requirement qualifies the “environmental impact” of the proposed modification. Hence, the focus must be on the impact or effect of the modification on the environment. "Environment" includes all aspects of the surroundings of humans, whether affecting any human as an individual or in his or her social groupings. Given the very broad and inclusive definition of “environment” in S 4(1) of the EPA Act, it is necessary to identify the relevant categories of potential impacts. These are considered to be as follows: Streetscape – no change to the envisaged streetscape will result from the proposed modifications. Both the primary and secondary street elevations remain visually the same as what was originally approved (albeit, the finished floor level condition to lower the building being deleted). Likewise, the general functioning and impact on the streetscape amenity will not change, viz:

• Front Setbacks – remain at the same distance as previously approved;

• Secondary Setbacks – remain at the same distance as previously approved;

• Garage door/s – the basement entry remains positioned and is of the same size as approved;

• Driveway – the percentage of soft landscaping within the primary and secondary street setbacks remains as approved;

• Window/door openings – minor placement and scheduling changes are proposed, which in effect improve privacy between adjacent properties. The windows visible from the public domain remain generally in the same position as per the original approved plans;

• Overall Height – the deletion of Condition 2A will result in the building retaining the originally proposed building height and floor levels; and

• Fencing – defines the private and public domain.

As such, the street rhythm or building pattern remains the same. Bulk and Scale – the elevated building form does not significantly add to the bulk and scale of the development (i.e., the external appearance of the building is almost identical, regardless of it not being lowered by 650mm).

http://www.austlii.edu.au/au/cases/nsw/NSWLEC/2006/505.html

http://www.austlii.edu.au/au/cases/nsw/NSWLEC/2006/505.html


Overshadowing – given the orientation of the site, the overall height of the building will not significantly increase the shadow impact on the adjoining property, and as deemed by the original assessment, is within acceptable limits. Privacy – privacy concerns were addressed with the previous application and the impact on adjoining properties will not increase as a result of the proposed modifications, due to the following:

• Side elevation window sills are raised and/or lowered;

• There is adequate separation between adjoining dwellings;

• Deletion of the rear balcony;

• Suitable boundary fencing and landscaping; and

• There is ample opportunity for screen planting within the Private Open Space areas.

Drainage – the drainage concept remains the same as that submitted with the original application. Capital Engineering Consultants have carried out a Flood Impact Study, which satisfies Condition 2 of the Development Consent. The report states: The site has been identified within a low-medium flood risk precinct. The site is affected by the 1% AEP storm event. The development consists of a basement car park and residential dwelling. The finished floor level has been raised 500mm above the flood level and the surrounding landscape has been cut 300- 500mm. Flood walls around the driveway have been proposed to protect the development against flood water traversing into the basement during the 1% AEP event. It is of our opinion that the proposed development with nominated flood mitigation measures will not contribute to any significant adverse impact on any adjacent properties and ultimately will not put the lives and belongings of residents in flood related danger.

The report concludes: A detailed investigation on the flooding behaviour has been undertaken in the vicinity of the proposed development at 44 Newton Road, Strathfield. Using a 1D/2D model, the study determined the flood behaviour for the 1% AEP design flood. The primary flood characteristics reported for the design events considered include depths, levels, velocities, and impact. The study has also defined the Provisional Flood Hazard for flood-affected areas. The impact of the proposed development was assessed and was found to be inconsequential. The flood maps are included under Appendix 3. The study addresses Council’s requirements as per the DCP. In our opinion, Council should allow the development in its current proposal.

Landscaped Area – the development as modified occupies the same built upon area, therefore, the landscaping opportunities remain substantially the same. Floor Space Ratio – there will not be any net increase or decrease in the FSR. Private Open Space – apart from a minor relocation of the inground swimming pool, the private open space area of the dwelling remains as per the previous approval which achieved the minimum private open space area required by the DCP.


4.1.2 Substantially the Same Development Development is tested against Clause 4.55 (1A) (b) [previously Section 96 (1A) (b)] of the Act as outlined in Vacik Pty Limited v Penrith City Council, which is also relied on in City Plan Services Pty Ltd v Woollahra Council (2004). In essence, ‘substantially,’ when used in the section means, essentially, materially or having the same essence. The formulation of the test was expressly approved by Mason P in North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 97 LGERA 433 at 440.

A visual comparison of the approved and as modified plans will reveal that apart from minor inconsequential changes associated with window placement and scheduling and not lowering the building by 650mm as per Condition 2A, the visual interpretation of both the original and as modified building forms is the same (i.e. the changes are minimal when viewed externally). In terms of bulk and scale, siting, configuration and functions between internal and external living areas, the development also remains substantially the same as approved. Likewise, all other residential amenities such as, access, car parking, private open space and landscaping all remain unchanged. No other changes to the consent are envisaged, therefore, the obvious conclusion is that the modified development is substantially similar to the approved development. As such, it follows that the development to which the consent as modified relates, is substantially the same development as that which has been approved, the essential nature of the proposed development remains the same before the amendments as after them. This means of course that the hurdle presented by subsection (1A) of Clause 4.55 (previously Section 96) has been satisfied.

Since the present proposal is substantially the same development as the approved development, the impact of the present proposal also remains substantially the same as the approved development. It follows that a consideration of the various matters referred to in Clause 4.15 (previously Section 79C) of the Act, will in this case, result in the same conclusion which led to the granting of consent to the approved development (i.e., the impact of the bulk and scale, privacy and overshadowing, for example, of the proposed development is substantially the same as the approved development). It is unlikely that complaints will be received from adjoining property owners in relation to the changes, given that the changes are relatively minor in terms of the overall development, and will not result in any significant environmental impacts.

In terms of the relevant environmental planning instruments (EPI’s) applying to the site, and the proposal in particular, it is considered that the proposed modifications will not undermine the overall objectives of Strathfield Local Environmental Plan 2012 (LEP), nor the supporting DCP.


5.0 CONCLUSION

The proposed modifications to the consent are considered minor and within the parameters of Clause 4.55(1A) [previously Section 96(1A)] of the EP&A Act (i.e., the proposed modifications are of minimal environmental impact and the development as amended will remain substantially the same).

Consideration has been given to the matters listed in Clause 4.15 [previously Section 79C] of the Environmental Planning and Assessment Act 1979, concluding that the minor modifications to the consent warrant approval.

……………….. David Bobinac Town Planner

D-PLAN URBAN PLANNING CONSULTANTS PTY LTD PO Box 201 Liverpool NSW 1871 Ph: (02… · 2020. 9....

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Transcript of D-PLAN URBAN PLANNING CONSULTANTS PTY LTD PO Box 201 Liverpool NSW 1871 Ph: (02… · 2020. 9....