Clause 4.6 Variation to Development Standard

Clause 4.6 Variation to Development Standard
This report is an objection to a development standard as prescribed in the comprehensive RLEP 2011. The objection relates
to the strict application of the requirements, prescribed by Clause 31 - Height of Rockdale LEP 2000.
The subject site is 79 Crawford Road, Brighton Le-Sands (the subject site). The subject site is currently occupied by a recently
developed two-storey dwelling with rooftop terrace.
Variation sought
This objection has been prepared having regard to the various instruments and NSW Land and Environment Court
judgements relating to the use of CLAUSE 4.6 1. In particular, the decision by Preston CJ in Wehbe v Pittwater Council [2007]
NSWLEC 829 compiles a number of previous decisions relating to the CLAUSE 4.6 1 process. As a result of this approach,
Preston CJ identified a specific procedure typically regarded as ‘best practice’ when preparing and assessing objections to
development standards. This procedure, and other relevant matters, forms the basis of this objection.
Development Standards
This CLAUSE 4.6 provides flexibility in the application of development standards when in the circumstances of a case, the
strict compliance with the standard is considered unreasonable or unnecessary. In accordance with Clause 31 - Height of
Rockdale LEP 2000, the maximum height permitted in a R2 Low Density Residential Zone is two storeys above ground level.
The proposal does not numerically comply with Clause 31 - Height of Rockdale LEP 2000.
The applicant provided a CLAUSE 4.6 1 objection stating that the development standard is unreasonable or unnecessary in
the circumstances, as the following reasons were given for departure from Development Standard:
•
The terrace is orientated towards the street and present itself as a two storeydwelling when
viewed from TheGrand Parade and MontereyStreet. Further, the proposedthird floor addition
relates to asmall section of the proposed roofterrace within the existing footprintof the dwelling
house and assuch, is considered not to createany additional impact in terms ofovershadowing,
bulk and scale,privacy and views.The roofstructure toprovide accessonto the roofterrace,
whichwill create thethird storey.
•
There has been a significant amount of recently approved developments of similar scale and nature within close
proximity to the site.
An application under CLAUSE 4.6 1 is subject to the following tests:
1. Is the planning control in question a development standard?
The height standard in question is a development standard as defined in the EPA Act Clause 4(1).
2. What is the underlying purpose of the standard?
Clause 31 does not refer to specific objectives. However, the underlying objectives of the height control are considered to be
similar to the objectives contained in the Rockdale LEP&DCP - which are:
•
•
To ensure that new development is in character with and sympathetic to the scale of adjacent residential buildings
and the surrounding streetscape.
To ensure development has minimal impact on neighbouring properties in terms of building dominance,
overshadowing, privacy and views.
The proposal is considered to be consistent with the objectives of the R2 - Low Density Residential Zone. The proposed
development will present itself as a two storey dwelling when viewed from Crawford Road. Further, the proposed third floor
addition relates to a section of the proposed roof terrace within the existing footprint of the dwelling house and as such, is not
considered to create any additional impact in terms of overshadowing, bulk and scale, privacy and views. It is considered in
this case, the strict application of the height requirements is unreasonable and unnecessary. The proposed variation to the
height requirement under clause 31(a) is therefore considered to be consistent with the underlying objectives of this clause.
3. Is compliance with the development standard consistent with the aims of the policy and in particular, does the development
standard tend to hinder the attainment of the objectives specified in s.5 (a)(i) and (ii) of the EPA Act?
The specified objectives of the EPA Act are;
5(a)(i) ... the proper management, development and conservation of natural and artificial resources for the purpose of
promoting the social and economic welfare of the community and a better environment.
5(a)(ii) the promotion and coordination of the orderly and economic use and development of land
The proposal has been designed taking into account the constraints of the site and the relevant requirements of Council'
s
controls. It is considered that the proposal would introduce a development to the locality that would not adversely impact on
the residential amenity of the area and provides a design that is sensitive to the existing built form and natural environment.
The proposal is unlikely to result in any adverse economic impacts, and considered to be consistent with the abovementioned
objects
4. Is compliance with the standard unreasonable or unnecessary in the circumstances of the case?
The proposed development involves a new enclosure to an existing three storey development, where the addition is created
by a roof terrace entry structure at roof level within the existing footprint. For the reasons outlined above, it is considered that
in this case, the strict application of the height requirements is unreasonable and unnecessary.
5. Is the objection well founded?
The following was also considered as part of the report:
•
•
•
•
•
The proposal meets with the zone objectives contained the LEP, allowing low density which does not adversely
impact on the amenity of the locality.
The roof over the lift shaft providing access to the rooftop terrace is a part pitch / skillion roof which is consistent with
the streetscape.
The rooftop terrace and associated roof entry structure is consistent with emerging house forms in the surrounding
area and will enhance the existing urban character, and is therefore consistent with the objectives of the zone.
The proposed rooftop entry structure is located towards the rear of the dwelling and covers a small portion of the
building. The increased setbacks will minimise overshadowing, bulk and massing towards the adjoining properties.
Lightweight timber and plant screening has been provided around the roof terrace to provide increased privacy to the
neighbouring dwelling towards the south.
It is therefore considered that the variation in this instance is well founded and that strict compliance with the two storey height
limit is unnecessary, based on the above. As such, the CLAUSE 4.6 1 objection should be supported
APPENDIX A
PRECEDNCE STUDY
DA-2012/118 B 369373
102 Napoleon Street Sans Souci 2219 2: Residential - Single new dwelling
R2 - Low
Density
Residential Maximum height permitted in a Low Density
DA-2012/65 2 20304 46 Riverside Drive SANDRINGHAM 2219 1:
Residential - Alterations & additions
Rockdale Local Environment al Plan 2000
2(a1) – Low Density
Residential
Maximum height permitted in a R2 Low Density Residential Zone is two storeys
DA-20121/385 184 10707 213 The Grand Parade MONTEREY 2217 2: Residential - Single new dwelling
Rockdale Local Environment al Plan 2000
R2 – Low Density
Residential
Maximum height permitted in a R2 Low Density Residential Zone
State Environmental Planning Policy - Building Sustainability Index (BASIX)
No BASIX Certificate for the proposed addition is required due to the estimated cost of the proposed development not
exceeding $50,000.
State Environmental Planning Policy (Infrastructure) 2007
The subject land is not on land in or adjacent to the road corridor for a freeway, a tollway or a transitway, nor is the land
adjacent to a busy road with an annual average daily traffic (AADT) volume of more than 40,000 vehicles or any other road
with an (AADT) volume of more than 20,000 vehicles or high level truck movements or bus traffic. The development does not
involve penetration of the ground to a depth of at least 3m below ground floor level. Further, the subject land is not on land
that is adjacent to a rail corridor.
Accordingly, the proposal is consistent with the provisions of the CLAUSE 4.6 and is acceptable in this regard.
Local Environmental Plans (LEP’s)
Rockdale Local Environmental Plan 2011
The following are the relevant matters from Council'
s Local Environmental Plan 2011.
Clause
2.2-Zone
4.3 & 4.4
Height & FSR
Clause 2.1 –
Control
Proposed
R2 - Low Density Residential
8.5m & 0.5:1
Complies
Partial enclosure of rooftop addition Yes
10.5m approx&0.46:1
No
The subject site is zoned R2 – Low Density Residential under the provisions of Rockdale Local Environmental Plan 2011
(RLEP 2011). The proposal constitutes a permissible development only with development consent.
It is considered that the proposal would introduce a development to the locality that would not adversely impact on the
residential amenity of the area as existing housing within the area is currently characterised by single storey and two storey
buildings that have a diversity of building elements and variable setbacks, whilst providing a design that is sensitive to the
existing built form and natural environment. The proposed development could therefore be considered to satisfy the relevant
objectives set for the Low Density Residential Zone as defined under RLEP 2011.
Clause 4.3 - Height of buildings
The height of the proposed building is 10500mm which exceeds the maximum 8.5m height permitted in Clause 4.3 (Height of
buildings) of RLEP 2011. The building height and design encourages high quality urban form, maintains satisfactory sky
exposure and provides an appropriate transition in built form and land use intensity. Further, the location of the proposed lift
structure on the western side of the existing dwelling and the significant setbacks from the proposed building to the property
boundaries will ensure that there is minimal adverse impact on the amenity of the existing and surrounding properties in terms
of building dominance, solar access, light and air. Therefore, it is considered that the proposed height of the building satisfies
the relevant objectives of Clause 4.3 in RLEP 2011 and accordingly, a variation to the development standard is warranted in
this instance.
Clause 4.4 - Floor space ratio
The proposed additional floor area would not exceed the maximum allowable FSR as per RLEP 2011.
Clause 5.9 - Preservation of trees or vegetation
The site contains trees that are subject to approval by Council under clause 5.9 of RLEP 2011 conferred by:
(a)
development consent, or
(b)
a permit granted by Council.
Council’s Tree Management Officer has provided appropriate conditions regarding the protection and retention of existing
trees and the removal of site trees subject to suitable replacement trees being planted in appropriate locations.
Clause 5.10 - Heritage conservation
The proposed development does not require consent in accordance with Clause 5.10 (2) of RLEP 2011.
Clause 6.1 - Acid sulfate soils
Acid Sulfate Soils (ASS) – Class 5 affects the property, however the works are unlikely to lower the watertable below 1m AHD
on adjacent Class 1, 2, 3 or 4 ASS affected land that is located within 500m of the subject property.
Clause 6.2 - Earthworks
Earthworks including excavation are required on site for the footings/slab to the proposed lift structure. A geotechnical
assessment report prepared by JK Geotechnics Geotechnical & Environmental Engineers has been submitted to Council and
the report includes recommendations regarding excavation conditions, excavation support and footings. In this regard
appropriate conditions are to be included in the draft consent to ensure that the proposed lift structure is built in accordance
with the recommended method of construction contained in the abovementioned geotechnical report.
With regard to the above the objectives and requirements of Clause 6.2 of RLEP 2011 have been considered in the
assessment of this application. It is considered that the proposed earthworks and excavation will not have a detrimental
impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding
land. However, notwithstanding, relevant conditions are to be included in the consent to ensure that the environmental
amenity of surrounding land is maintained, and soil erosion, sedimentation, and drainage impacts are minimised.
Clause 6.3 - Development in areas subject to aircraft noise
The development is on land that is not located near Sydney (Kingsford-Smith) Airport and the land is in not in an ANEF
contour of 20 or greater.
Therefore, the proposed development does not require noise mitigation measures.
Clause 6.4 - Airspace operations
The proposed development is subject to the 15.24m Building Height Civil Aviation Regulations, however the 10.913m height of
the proposed lift structure will have minimal impact on the civil aviation building height requirement.
The property is affected by the Obstacle Limitation Surface which is set at 51m AHD, however there will be minimal impact on
the OLS as the levels shown on the survey plan are a maximum 19m AHD.
Clause 6.6 - Flood planning
The property is not affected by flooding and therefore, the building will not require protection from possible flooding by setting
minimum RLs / floor levels.
Clause 6.7 - Stormwater
The development provides for adequate drainage design as proposed hard paving and filling is minimal, therefore reducing
the amount of urban runoff and ensuring stormwater surface flows are effectively controlled. The roofwater and stormwater
runoff is to be directed to the existing stormwater drainage system. Standard conditions are to be included in the consent that
the discharge of stormwater will be required to comply with Rockdale Technical Specification Stormwater Management.
Clause 6.8 - Biodiversity protection
The land is not identified as Environmentally Sensitive Land – Biodiversity on the Natural Resource – Biodiversity Map.
Clause 6.9 - Riparian land, watercourses and artificial waterbodies
The land is not situated within 40 metres of the top of a bank of a watercourse or artificial waterbody.
Clause 6.12 - Essential services
The following services are available for the proposed development:
(a)
(b)
(c)
(d)
(e)
the supply of water,
the supply of electricity,
the disposal and management of sewage,
stormwater drainage or on-site conservation,
suitable road access.
Therefore, the services that are essential for the proposed development satisfy the relevant requirements of RLEP 2011.
Provisions of any Draft Environmental Planning Instruments (S.79C(1)(a)(ii))
Draft Rockdale Local Environmental Plan 2011 (Amendment No. 1) - Housekeeping was on public exhibition from 28 June
2012 until 27 July 2012. In addition Draft Rockdale Local Environmental Plan 2011 – Height of Building Maps Amendment was
on public exhibition from 27 September 2012 until 12 October 2012. However none of the proposed changes affects the
proposal.
There are no other Draft Environmental Planning Instruments applying to this proposal.
Provisions of Development Control Plans (S.79C(1)(a)(iii))
The proposal has been assessed against the requirements of RDCP 2011. Refer to the compliance table within this report.
Provisions of Regulations (S.79C(1)(a)(iv))
Determination of Development Applications - Division 8 of the Environmental Planning and Assessment Regulation 2000 has
been considered in the assessment of this application where relevant. Clauses 92-94 of the Regulations outline the matters to
be considered in the assessment of a development application.
Therefore, all relevant provisions of the Regulations have been taken into account in the assessment of this proposal.
Impact of the Development (S.79C(1)(b))
Visual and Acoustic Privacy
The proposed building is designed and located to minimise overlooking of neighbouring properties. Further, the existing trees
located adjacent to the boundaries of the subject property will ensure that a reasonable level of privacy is maintained between
the adjoining properties. Adequate screening has been provided.
With regard to acoustic privacy there will be minimal adverse impact on the amenity of adjoining and surrounding dwellings as
consideration has been given to the location and design of the building in relation to minimising noise intrusion on these
properties.
Overshadowing
The property exhibits a corner blocek eastern orientation and accordingly, the proposed development which observes the
minimum front, side and rear setbacks presents an acceptable level of overshadowing that is unlikely to significantly impact on
the level of solar access to adjoining development or over the development itself.
Therefore, it is considered that solar access is to be retained in accordance with the requirements of RDCP 2011.
Character / Streetscape / Density / Bulk / Scale
The proposed development complements the character and identity of the existing streetscape in terms of building height, bulk
and scale, roof pitch and form, facade detail, scale and treatment and use of materials.
The new development will create a residential environment where the building design reflects the residential character of the
locality that is characterised by single-storey and two-storey buildings houses of varying ages and architectural styles. Further,
the streetscapes built form, landscaping and environmental conditions are not deteriorated by the proposed development. It
should be noted that there is no existing pattern of residential development in this street as this is not an established
streetscape with strong stylistic or architectural features or identity.
The proposed front setback is consistent with the variable setbacks of surrounding buildings and in this regard the residential
streetscape will be retained and complemented. The proposed development is in keeping with the scale and character of
contextual development in terms of density, bulk and scale. Further, the proposal would result in an improved built form
outcome relative to the existing dwelling and would provide occupants with a design that is sufficient from a sustainable
development perspective.
As stated previously in this report the proposed building height does not comply with the numerical control in RLEP, however
the proposed building is not dissimilar to surrounding development when viewed from Wallenbeen Place. In this regard it is
considered that the proposed development provides a gradual change in scale that relates to the residential buildings in the
streetscape and the proposed development is compatible with surrounding buildings, which have varying design elements that
create more interest, whilst still ensuring a high standard of building design that is sympathetic and complementary to the
existing built form.
Therefore, the proposed development is unlikely to significantly impact on the streetscape and adjoining and surrounding
development as the density, bulk and scale of the proposed building is considered to be satisfactory, due to its consistency
with surrounding development, the topography of the site and the immediate surrounding area.
Site Design and Internal Design
The proposed development takes advantage of the site’s capability, topography and orientation to ensure sufficient solar
access, lighting and ventilation is provided to the dwelling and private open space. Further, the site layout makes use of
sunlight and outdoor space to achieve a pleasant living environment for the residents.
Views
The proposal will have minimal impact on the views from the neighbouring properties as the design and location of the
proposed building will ensure that existing view corridors are not overly obstructed. As such, the siting of the proposed building
will ensure that there is minimal adverse impact on the surrounding views/outlooks presently enjoyed by adjacent residents.
Construction
The proposed building is to be constructed in steel frame and aluminium framed glass panels with a metal roof and a concrete
floor. There are no specific issues relating to the BCA in the proposed design.
Site and safety measures are to be implemented in accordance with conditions of consent and Workcover Authority
guidelines/requirements.
Suitability of the Site (S.79C(1)(c))
There are no other major physical constraints or exceptional circumstances that would hinder the suitability of the site for the
proposed development and therefore, the relevant matters pertaining to the suitability of the site for the proposed development
have been considered in the assessment of the proposal. Additional conditions of consent are proposed to further minimise
any impacts on neighbouring properties.
Public Interest (S.79C(1)(e))
The proposal has been assessed against the relevant planning policies applying to the site having regard to the objectives of
the controls. As demonstrated in the assessment of the development application, the proposal will allow the development of
the site in accordance with its environmental capacity. It is considered that the proposed building is designed to add
architectural value to the existing streetscape. Furthermore, the proposal does not create unreasonable impacts on
surrounding properties. As such it is considered that the development application is in the public interest.
CONCLUSION
The proposed development has been considered under S79C(1) of the Environmental Planning and Assessment Act, 1979.
The proposal involves a variation to the development standard Clause 4.3 in RLEP 2011 and in this regard the variation
should be supported as it complies with the set of criteria in Clause 4.6 of RLEP 2011. The preliminary submission provides a
clear indication why the strict application of the control under Clause 4.3 is unreasonable and unnecessary. It is considered
that in this case, the strict application of the height of buildings requirement is unreasonable and unnecessary as the proposed
building height does not create any additional impact in terms of building dominance, overshadowing, bulk and scale or
privacy and views. The proposal is consistent with the objectives of the controls under RLEP 2011 and DCP 2011 and is
considered to be in the public interest. Therefore, it is considered that approval of the application would not set an undesirable
precedent in the area.