Agenda of Ordinary Meeting

Ashfield Council – Report to Ordinary Meeting held on Tuesday 27 August 2013 CM10.1

Subject DEVELOPMENT APPLICATION: 10.2013.086.1
96, 98 & 100B RAMSAY STREET HABERFIELD

File Ref 10.2013.086.1

Prepared by

Reasons Matter requires Council determination

Objective For council to determine the application

Overview of Report

1.0 Description of Proposal

Pursuant to Clause 78A(1) of the Environmental Planning and Assessment (EP&A) Act 1979 (as amended) this application seeks Council’s consent to use Council’s footpath (being part of a local public road) on Ramsay and Dalhousie Streets for customer seating to be used for outdoor dining associated with cafe and restaurant premises at 96, 98, and 100B Ramsay Street, Haberfield.

The submitted plans propose 24 tables and 48 chairs. No details have been submitted as to the type and appearance of the proposed dining furniture.

This development application seeks to regularise an existing situation where tables and chairs have been and are placed each day in approximately the same position as proposed by this development application.

Plans of the proposal are included at Attachment 1.

Staff Note: This application has been referred to an independent planning consultant for assessment and the preparation of this report in accordance with Council policy (i.e. development application lodged by or on behalf of a Councillor or their immediate family or Councillor or their immediate family is the land owner, co-owner or has a significant interest in the land).

2.0 Summary Recommendation

The proposed development fails to comply with the requirements of Council’s Outdoor Dining and Footpath Trading Policy and does not achieve the stated objectives of the Ashfield Development Control Plan 2007 by failing to resolve significant safety issues for all pedestrians using the footpath in this section of Dalhousie Street and Ramsay Street.

This application is recommended for refusal.

Background

3.0 Application Details

This development application concerns land owned in fee simple by Ashfield Council and forming part of a local public road. In the strictest reading of the relevant legislation, Council is required to provide consent as owner to this land to allow this application to be made. However, there is case law that supports the making of this application by an owner of land adjoining Council’s road and that the Council should not unreasonably withhold its consent for the application to be made. Giving consent as owner of the land does not in any way bind Council to give development consent to the application.

Applicant : Mr C Filmer

Owner of the properties : 96 Ramsay Street -Trelawney Property Holdings P/L

adjoining the footpath 98 Ramsay Street –Vmmad P/L

100B Ramsay Street – Mr G & Mrs N Lombardo

Value of work : Nil

Lot/DP : Lot 1 DP 560077 (No.96), Lot: 5 DP: 8246 (No.98), Lot 1 DP 950665 (No.100B)

Date lodged : 07/05/2013

Date of last amendment : N/A

Building classification : N/A

Application Type : Local

Construction Certificate : No

Section 94A Levy : No

4.0 Site and Surrounding Development

The land which is the subject of this development application is an area of footpath located on the south-western corner of the intersection of Ramsay and Dalhousie Streets, Haberfield. The footpath forms part of a local public road for which Ashfield Council is the road authority under the NSW Roads Act 1993.

The premises adjacent to the footpath at this location are used as a cafe and restaurant. The tables and chairs proposed to be used for outdoor dining will be used in conjunction with those premises. The advertised times that these premises operate is from 6 a.m. until an undisclosed time each night 7 days a week. This application is silent as to what times the tables and chairs are proposed to be placed on the footpath.

The area of the footpath proposed to be occupied for outdoor dining extends approximately 14.0 m along the Ramsay Street frontage of the premises providing for 14 tables and 28 chairs; and approximately 9.0m along the Dalhousie Street frontage providing for 10 tables and 20 chairs. It is proposed that the tables and chairs be positioned against the building facade.

Surrounding development comprises retail and commercial development within the Haberfield Town Centre.

5.0 Development History

There has not been any previous consent for use of the footpath adjacent to the shopfront in this location.

Assessment

6.0 Zoning/Permissibility/Heritage

· The footpath, being the land which is the subject of this development application, is part of the road and is unzoned land.

· The cafe and restaurant premises at 96, 98, and 100B Ramsay Street are zoned 3(a) - General Business under the provisions of Ashfield LEP 1985 and the use of these premises for this purpose is permissible with development consent.

· Both the footpath and the cafe/restaurant premises are within the Haberfield Conservation Area.

· No. 98 to 100 Ramsay Street is a heritage item (Map reference number 287).

Notwithstanding that this development application is for the use of unzoned land, the Ashfield LEP 1985 adopts the 1980 Model Provisions which require that a person wishing to carry out development on an unzoned public road may only do so with development consent.

While local public roads for which Ashfield Council is the road authority under the NSW Roads Act 1993 are vested in fee simple with Council they do not comprise land which is “public land” for the purposes of the NSW Local Government Act, 1993 and there is no requirement to classify roads as either “operational land” or “community land” prior to determining this development application.

Accordingly, the proposal is permissible with Council consent.

If Council is of a mind to grant consent to this development application, there is statutory requirement a further and separate application to be made under Section 125 of the Roads Act for use of the footpath for outdoor dining purposes prior to the use commencing. In addition, it is Council’s normal requirement that a lease or licence be entered into with the person(s) intending to occupy the area of the footpath prior to the use of the footpath commencing. The evaluation and determination of this development application does not concern these separate matters.

The application now before Council does not concern matters under the Roads Act.

7.0 Section 79C Assessment

The following is an assessment of the application with regard to the heads of consideration under the provisions of Section 79C of the EP&A Act.

7.1 The provisions of any Environmental Planning Instrument

7.1.1 Local Environmental Plans

Ashfield Local Environmental Plan 1985 (as amended)

The outdoor dining facilities are intended to be used in conjunction with established cafe and restaurant premises. The cafe and restaurant is a permitted land use within the 3(a) – General Business zone under the provisions of the Ashfield LEP 1985.

The outdoor dining is proposed on Council’s footpath which is unzoned land. Notwithstanding, the LEP applies to all land within the Ashfield local government area and as such the objectives of the LEP are relevant to this application. For reasons provided throughout this report it is considered that the proposed development fails to promote the orderly and economic development of land and therefore does not achieve the objectives of the LEP.

As for specific provision of the LEP only Part 5 – Heritage Provisions of the LEP apply to this proposed development. This application has been discussed with Council’s Heritage Adviser and given the moveable and non-permanent nature of outdoor furniture no objections on heritage grounds have been raised. If Council is of a mind to approve this application then a condition of consent should be imposed to require that the tables and chairs be a dark and recessive colour to minimise any visual impact upon the heritage item and streetscape generally.

7.1.2 Regional Environmental Plans

Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005

It is considered that the carrying out of the proposed development is generally consistent with the objectives of the Plan and would not have any adverse effect the Sydney Harbour Catchment.

7.1.3 State Environmental Planning Policies

State Environmental Planning Policy No. 55 – Remediation of land

Remediation of the site is not required prior to the carrying out of the proposed development.

7.2 The provisions of any Draft Environmental Planning Instrument that is or has been placed on public exhibition and details of which have been notified to the consent authority.

Draft Ashfield Local Environmental Plan 2013 (Draft ALEP 2013) was placed on public exhibition on 27 June 2012 and endorsed by Council on 28 March 2013 for referral to the Department of Planning and Infrastructure under section 59 of the NSW Environmental Planning and Assessment Act 1979 and is a matter for consideration.

The Draft ALEP 2013 intends to include roads (including footpaths) in the Haberfield Town Centre along Dalhousie and Ramsay Streets in the B2 - Local Centre zone.

The following table summarises the compliance of this application with the relevant provisions of Draft ALEP 2013.

Draft Ashfield Local Environmental Plan 2013 Summary Compliance Table
Clause No.	Clause	Standard	Proposed	Complies
	LEP Objectives	Promote orderly and economic development	Is not considered in the public interest.	No
2.3	Zone objectives and land use table	Zone B2 Local Centre	Outdoor dining “Commercial Premises”.	Yes
4.4	Floor space ratio	Does not apply to the local public roads which are the subject of this application	Not applicable to this DA.	N/A
5.10	Heritage Conservation	Located in the Haberfield Conservation Area
5.10(4)	Effect on heritage significance	The consent authority may, before granting consent to any development: (a) on land on which a heritage item is located, or (b) on land that is within a heritage conservation area, or (c) on land that is within the vicinity of land referred to in paragraph (a) or (b), require a heritage management document to be prepared that assesses the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area concerned.	Heritage Item No. 447 in the Draft Plan includes the commercial buildings and dwellings at 96-100 Ramsay Street. The proposed development is proposed on the footpath in front of these premises. No heritage assessment has been submitted with the current DA. As stated previously in this report, this application has been discussed with Council’s Heritage Adviser and given the moveable and non-permanent nature of outdoor furniture no objections on heritage grounds have been raised. If Council is of a mind to approve this application then a condition of consent should require that the tables and chairs be a dark and recessive colour to minimise any visual impact upon the heritage item and the streetscape generally.	No

7.3 The provisions of any Development Control Plan.

The proposal has been considered against the relevant provisions of the Ashfield Development Control Plan (DCP) 2007 as follows:

C1	ACCESS AND MOBILITY	While this Part of DCP 2007 does not specifically deal with development of the type currently before Council, it does emphasise the need for retail and commercial premises to comply with the Disability Discrimination Act 1992, (DDA) particularly with regard to access to those premises. The DCP 2007 includes a definition of “continuous accessible path of travel” as: *Continuous accessible path of travel* means an uninterrupted route to or within premises or buildings and providing access to all services and facilities. It should not contain any step, stairway, turnstile, revolving door, escalator, hazard or other impediment which would prevent it being safely negotiated by people with disabilities. A footpath is required to be accessible to persons with a disability and if it (or part of it) is used in conjunction with an adjoining business activity then the area defined as that constituting “premises” occupied by that business activity extends over the footpath. Any encroachment on the footpath by a business activity such that it adversely affects the continuous accessible path of travel to or within those premises is likely to amount to a breach of the DDA. Moreover, Council provides and maintains the footpath on a local road for free and open use by the public at large and for the public benefit. If Council tolerates or approves of an encroachment that disturbs or impedes the use of the footpath by all members of the public then it may well expose itself to a risk of successful litigation being brought against it by a person who becomes disorientated and injured. An important criterion for the provision of a continuous accessible path of travel is having a guidance line on which a visually impaired person can rely to guide them along the path of travel and it is generally accepted that the preferred guidance line providing the safest path of travel is the building line. The issue of design and accessibility is dealt with further in the following section of this report discussing Council’s Outdoor Dining and Footpath Trading Policy.
C7	HABERFIELD HERITAGE CONSERVATION AREA	As stated previously in this report no objections on heritage grounds are raised against this application subject to controls over the colour of the outdoor furniture.
C10	HERITAGE CONSERVATION	No. 98 to 100 Ramsay Street is a heritage item (Map reference number 287 in the current LEP). No objections on heritage grounds are raised against this application.
C11	PARKING	The proposed outdoor seating, if approved, will require the applicant to enter into a lease or licence with Ashfield Council before occupying this area of the footpath. As such, the physical boundaries of the area proposed to be leased or occupied by licence will need to be defined. From the plans submitted with this application, it is estimated that area of approximately 35-40m² is required to accommodate the 24 outdoor tables and 48 chairs. This will generate a need for 1 additional car space and 1 additional cycle parking space. There is no on-site parking available and none has been proposed to satisfy this requirement of Council’s DCP.

An Appendix to the Ashfield DCP 2007 is the Outdoor Dining and Footpath Trading Policy, which is policy made under Section 23 of the NSW Local Government Act 1993.

The policy identifies the footpaths of Ramsay and Dalhousie Streets within the Haberfield Town Centre as possible locations for footpath dining and footpath trading but this is not an automatic guarantee of approval. Any proposal must adhere to the objectives, principles and criteria of the Policy.

The stated objectives of this Policy are:

1.1 Objectives

1. To promote the fair and reasonable use of Council footpaths for outdoor dining and the display of goods.

2. To ensure that such use provides for safe and convenient access by pedestrians and people accessing the area by vehicles.

3. To ensure that such use enhances the visual quality of streetscapes.

4. To set conditions of use.

5. To ensure that the use of footpaths benefits the community as a whole.

In order to achieve these objectives this policy requires that outdoor dining must be located on the kerbside of the footpath. The proposed development fails in this regard as it proposes that tables and chairs be placed against the building facade.

If the application was to be amended so that the proposed tables and chairs were to be located on the kerbside of the footpath then a further principle of the policy applies. Where there is kerbside parking adjacent to the proposed outdoor dining (as there is in this instance) there is to be a 600mm wide clear area to the kerb to allow car doors to open. The NSW Roads and Maritime Service has recommended for this to be extended to 1.0m in this instance and this would result in the available clear path of travel for pedestrians between the tables and chairs and the building line being limited to only approximately 1.0m wide. Council’s Policy requires a minimum clear path of travel for pedestrians to be 1.8m wide.

The clear passage for pedestrians is likely to be made even narrower because the policy requires that the area of the footpath leased or licensed for outdoor dining must be enclosed by an appropriate barrier to physically define the space and any such barrier will only have the effect of further limiting the clear path of travel for pedestrians.

Council’s 1.8m minimum clear path of travel for pedestrians is supported by the Human Rights and Equal Opportunity Commission, which is the is the body responsible for administering the Disability Discrimination Act 1992. However, it has issued an Advisory Note on access to premises which provide some leeway with this requirement and it states that where it is not possible for a continuous accessible path of travel to be 1.8m wide, then the frequency of passing spaces should be considered in the context of allocation and purpose of the path. Council’s Policy has regard to this principle by requiring consideration to be given to the use of the footpath in any location and the amount of pedestrian and vehicular traffic in that area.

The Policy specifies that outdoor dining on footpaths will not be considered at bus stops, taxi ranks, near pedestrian crossings or other areas where there is heavy pedestrian traffic or vehicular traffic safety concerns. The intersection of Ramsay and Dalhousie Streets is signalised and is a busy intersection for both vehicular and pedestrian traffic and it is considered that there are insufficient grounds to warrant any relaxation of the requirement to provide a continuous accessible path of travel to be 1.8m wide.

To maintain adequate clearance and sight lines the policy specifies that outdoor dining and footpath trading activities maintain a clearance of 3.0m away from this intersection along both streets as measured from the corner of the building at the intersection. The application does not provide for this clearance. To achieve this clearance it is estimated that 12 tables and 24 chairs need to be deleted from the proposal. This is 50% of the amount of tables and chairs being sought by the current application.

While the positioning of some tables and chairs on the footpath in this location may be reasonable when considering the mobility and agility of the “average” pedestrian who also has satisfactory eyesight and hearing, this does not automatically equate to providing a safe footpath for use by all persons. Children and Seniors are ignored; as are intoxicated persons, the vision and hearing impaired and people with prams or in wheelchairs. These pedestrians will all potentially experience difficulty and inconvenience with access at this busy intersection even without any dining tables and chairs. These are groups who are most dependent on walking, and who often do not have the option of driving a car, and are most impeded by footpath obstructions. The principal purpose of the footpath is to provide a public thoroughfare and not simply an access way to the subject premises. It is considered that in this particular instance the building line provides the safest guidance line on which a visually or mobility impaired person can rely to guide them along the path of travel without wandering/falling onto the roadway – this being the case, any proposed tables and chairs placed against the building facade will amount to being a hazard or an impediment and therefore a threat to public safety.

It is considered the application fails to comply complies with Council’s Outdoor Dining and Footpath Trading Policy and by doing so does not achieve the aims and objectives of the Ashfield DCP.

7.4 Any matters prescribed by the regulations that apply to the land to which the development application relates.

These matters have been considered in the assessment of this application.

7.5 The likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts on the locality.

These matters have been considered as part of the assessment of the development application. It is considered that the proposed development will have serious adverse social impact upon the locality by virtue of creating a threat to public safety by impeding, limiting and interfering with the safe pathway of travel for pedestrians in this locality.

7.6 The suitability of the site for the development

This location is considered to be unsuitable for the proposed amount of outdoor seating because of the reasons discussed previously in this report; particularly the probability of creating a threat to public safety.

7.7 Any submissions made in accordance with this Act or the regulations

The proposal was not notified to adjoining and nearby property owners and occupants.

Staff Note: In May 2010 Council resolved that notification would not be required for applications for outdoor dining and footpath trading and that they would be treated as ‘minor works’ pursuant to Clause 2.26 of the Notification DCP.

7.8 The public interest

Matters of the public interest have been taken into consideration in the assessment of this

application. The proposal is not considered to be in the public interest.

8.0 Referrals

8.1 Internal

Council’s Environmental Health Team Leader has advised that this development application should be refused because the application does not comply with the requirements of Council’s Outdoor Dining and Footpath Trading Policy.

8.2 External

Roads & Maritime Services

Council notified the Transport Division of the NSW Roads & Maritime Services of this application on 17 May 2013. A written response was provided on 21 May 2013 raising no objection to the proposed development subject to the imposition of various conditions if development consent is to be granted.

9.0 Other Relevant Matters

None.

10.0 Building Code of Australia (BCA)

A Construction Certificate will not be required for the proposed development.

Financial Implications

Nil.

Other Staff Comments

See Section 8.1 of this report.

Conclusion

The application has been assessed in accordance with the provisions of the EP&A Act 1979 with all matters specified under Section 79C (1) Clauses (a) to (e) having been taken into consideration.

The proposal is unacceptable and is recommended for refusal.

ATTACHMENTS

Attachment 1 View

Plan of Proposal

1 Page

RECOMMENDATION

That Council as the consent authority pursuant to Clause 80(1)(b) of the Environmental Planning and Assessment Act 1979 (as amended) refuse Development Application No. 10.2013.86.1 for customer seating on the footpath to be used for outdoor dining associated with cafe and restaurant premises at the corner of Dalhousie Street and Ramsay Street Haberfield NSW 2045 being 96, 98, and 100B Ramsay Street, Haberfield NSW 2045 (Lot 1 DP 560077 (No.96), Lot: 5 DP: 8246 (No.98), Lot 1 DP 950665 (No.100B)), for the following reasons:

1. The proposed development does not comply with the requirements of Council’s Outdoor Dining and Footpath Trading Policy with respect to positioning the proposed outdoor dining furniture on the kerbside of the footpath and therefore does not provide a safe guidance line along this section of footpath for visually or mobility impaired pedestrians.

2. The proposed development does not comply with the requirements of Council’s Outdoor Dining and Footpath Trading Policy with respect to providing a minimum clearance of 3.0m away from the intersection along both Dalhousie and Ramsay Street thereby restricting sight lines and providing inadequate clearance at and around the signalised pedestrian crossing.

3. Having regard to the requirements Council’s Outdoor Dining and Footpath Trading Policy and the requirements of the NSW Roads and Maritime Services the proposed development fails to resolve significant safety issues for all pedestrians on the Dalhousie and Ramsay Street footpath in respect to being able to provide a minimum 1.8m wide clear path of travel for pedestrians.

4. The proposed development fails to provide a continuous path of travel as defined and required by the Ashfield Development Control Plan 2007 Part C 1 – “Access and Mobility”.

5. The proposed development fails to comply with the requirements of the Ashfield Development Control Plan 2007 Part C 11 – “Parking” by not providing for 1 car space and 1 cycle parking space generated by the additional customer seating.

6. The proposed development fails to provide a safe and secure environment for all persons and therefore does not achieve the objectives of the Ashfield Development Control Plan 2007 and is not in the public interest.

7. The proposed development fails to promote the orderly and economic development of land and therefore does not achieve the objectives of the Ashfield Local Environmental Plan 1985 or of the Draft Ashfield Local Environmental Plan 2013 and is not in the public interest.

Phil Sarin

Director Planning and Environment

Ashfield Council – Report to Ordinary Meeting held on Tuesday 27 August 2013 CM10.2

Subject DEVELOPMENT APPLICATION: 10.2011.078.4
13 SERVICE AVENUE ASHFIELD

File Ref DA 10.2011.078

Prepared by Daisy Younan - Development Assessment Officer

Reasons Matter requires Council determination

Objective For Council to determine the application

1.0 BACKGROUND

This Section 96 application was referred to Council for determination at its meeting held on 25^th June 2013. The plans, originally submitted to Council as part of this application, sought an approval to increase the overall height of the building further than that approved by the Land and Environment Court and the officer’s report recommended refusal of the proposed modifications. (original S.96 report is included in Attachment 3).

In determining the matter, Council resolved the following:-

“That the matter be deferred for one month to allow for further negotiation on outstanding issues with the applicant”.

In response to the above resolution the applicant provided revised plans to Council on 07^th August 2013.

1.1 DESCRIPTION OF MODIFIED PROPOSAL

Pursuant to Section 96(AA) of the Environmental Planning and Assessment Act 1979, this application seeks Council’s approval to modify development consent No. 10.2011.78.2. The amendments have been listed in 3 parts to distinguish the variations sought. These are:-

Part A - Proposed modifications shown on amended plans and provided in the applicant’s written submission:-

1. Construction of western garage on the Harland property boundary;

2. Increase the building wall heights by 700mm;

3. Provisions of new windows on the northern and southern walls of the first floor front bathrooms;

4. Reducing roof pitch from 29̊ to 27.5̊;

5. Location of gas hot water unit facing Harland Street not be modified; and

6. Increasing the height of the front and rear verandah to 2.4m and increasing their roof pitch to 40̊;

7. Modifications of stormwater drainage system;

8. Deletion of north and south ground floor study room windows for both dwellings;

9. Enlargement of rear aluminium sliding doors of the ground floor lounge rooms for both dwellings;

10. Provisions of new windows on the western walls of the rear first floor bathrooms of both dwellings;

11. Modification to lid roof windows so that they are set further away from main roof ridge of the building;

Part B - Conditions requested by applicant to be deleted:-

· Condition B(1)(d) which reads as follows:

Gas Hot Water Unit: the gas hot water unit facing Harland Street shall be relocated so that it is not visible from either street frontage.

· Condition B(1)(f) which reads as follows:

Levels: The proposed AHD levels are to be amended as follows:

· Ridge: 51.22

· Top of Side Gutters to Main Roof: 47.9

· Side Springing Point of First Floor Ceiling: 48.2

· First Floor: 46.9.

· Condition B(1)(j) which reads as follows:

Rear Gable Windows:

The two smaller, outer most windows are to be deleted. To compensate for this, the skylights already shown on the plan in this vicinity may be moved as necessary to provide natural light to the ensuite bathroom.

· Condition B(1)(k) which reads as follows:

Side Dormer Windows:

The two dormers on each side of the roof are to be combined such that each side only features a single dormer. The length of each is to be no greater than the minimum required by the BCA to provide natural daylight and, in any case, no longer than 6m. In addition, the outer northern/southern faces of the dormers are to be set back 400mm from the outer face of the masonry walls of the level below.

· Condition B(2) which reads as follows:

Garage/carport setback

The garage is to be located not less than 1.0m from the Harland Street boundary.

· Condition C(6) which reads as follows:

Stormwater disposal – Calculations

(a) Calculations and details of the proposed method of stormwater disposal shall be prepared by a suitably qualified professional civil engineer in accordance with Council’s Stormwater Management Code and submitted to, and approved by, Council prior to the release of the Construction Certificate.

The Construction Certificate plan to be submitted to Council must consist of the following items:

Separate catchment areas within the site draining to each collection point or surface pit classified into the following categories:

(i) Roof areas.

(ii) Paved areas.

(iii) Grassed areas.

(iv) Garden areas.

(v) The percentages of Pre-development and Post-development impervious areas

(b) At each pit and or bend, a level of pipe is to be shown (the minimum grade for pipes is 1%).

(c) All flowpaths both internal and external, which pass through or around the proposed development site, are to be shown on the Construction Certificate plan.

(d) Calculations and details are to be provided to Council showing that provisions have been made to ensure that the piped drainage system including pits have been sized to accept runoff from all storms up to the 100 year ARI, (including overflows from roof gutters).

Part C - Modifications not mentioned in the applicant’s written submission but shown on amended plans:-

1. Enlargement and relocation to approved bathroom skylights; and

2. Reconfiguration and relocation of approved first floor rear bedrooms (bedroom1 for both dwellings).

Architectural plans are included in Attachment 1.

2.0 ASSESSMENT

Part A - Proposed modifications shown on amended plans and provided in the applicant’s written submission:-

No issues are raised to the amendments proposed under item Nos. 1, 2, 3, 4, 5, 6, 8, 9,10 and 11.

Council engineers do not support the amended stormwater design detailed in point 7 and would prefer to see the proposed ‘charged’ system modified, however, this is an issue than can be resolved at construction certificate stage. Refer to comments in Part B below.

Part B - Conditions requested by applicant to be deleted:

The deletion of following conditions is supported:

B(2), B(1)(d), B(1)(f), B(1)(j) & B(1)(k)

However, the removal of condition C(6) is not supported as it is a standard condition that is imposed on all development consents granted for similar development to ensure compliance with Council’s stormwater management codes and policies. It should be noted that a private certifier can issue a construction certificate upon being satisfied the stormwater system achieves compliance with Council’s stormwater management codes/policies and conditions of consent.

Council engineers have recommended that condition E(19) be modified as follows:

From

(19) Stormwater runoff – Collection/discharge

Stormwater runoff from all roof and paved surfaces shall be collected and discharged by means of a gravity pipe system to the street gutter at a maximum discharge of 15 L/sec for the 1:100 ARI.

(19) Stormwater runoff – Collection/discharge

Stormwater runoff from all roof and paved surfaces shall be collected and discharged by means of a gravity pipe system to the street gutter at a maximum discharge of 15 L/sec for the 1:100 ARI.

The site’s drainage system shall not be permitted to be charged at any point within the site.

A plan reflecting this requirement shall be submitted and approved by the relevant Flood Management Authority that being Ashfield Council, prior to the release of the Construction Certificate.

The above change is considered to be more onerous than the original condition and is not supported as the original condition still enables the applicant to meet Council’s requirements.

2.1 RECOMMENDATIONS

That the application be approved subject to the following:

1. Conditions B(2), B(1)(d), B(1)(f), B(1)(j) & B(1)(k) be deleted;

2. Condition C(6) be retained.

3.0 REFERRALS

The proposed S96 amendments have been referred to relevant officers for consideration. Council’s Heritage Adviser is still of the view that the Land & Environment Court approved plans are preferred to the latest amendments and his comments provided previously still stand (refer to Attachment 3)

4.0 CONCLUSION

The application has been assessed in accordance with the provisions of the Environmental Planning and Assessment Act, 1979 as amended with all matters specified under Section 79C (1) Clauses (a) to (e) and Section 96(AA) have been taken into consideration. The proposed modifications, except as provided above, are considered to be acceptable and the application is therefore recommended for approval subject to the amended conditions below.

ATTACHMENTS

Attachment 1 View	Plans of Proposal	19 Pages
Attachment 2 View	Locality Map	1 Page
Attachment 3 View	Report to Council Meeting 25 June 2013 and attachments	46 Pages

RECOMMENDATION

That Council as the consent authority pursuant to Clause 80(1)(a) of the Environmental Planning and Assessment Act 1979 (as amended) approve Development Application No. 10.2011.78.4 to modify development consent 10.2011.78.2 as indicated under Clause 1.0 of this report subject to the following.

· Condition A1 (Approved plans stamped by Council) be amended

The development must be carried out only in accordance with the plans and specifications set out on the drawings in the table below and date stamped by Council and any supporting documentation received with the application, except as amended by the conditions specified hereunder.

No.	Title	Prepared by	Dated	Date stamped by Council
03	Proposed Site Plan	House Plans by Design	02/08/2013	07/08/2013
04	Ground Floor Plan	House Plans by Design	02/08/2013	07/08/2013
05	First Floor Plan	House Plans by Design	02/08/2013	07/08/2013
06	North + South Elevations	House Plans by Design	02/08/2013	07/08/2013
07	East + West Elevations	House Plans by Design	02/08/2013	07/08/2013
08	Sections	House Plans by Design	02/08/2013	07/08/2013
09	Garage Details	House Plans by Design	02/08/2013	07/08/2013

· Condition B2 (Garage/carport setback) be deleted.

· Condition B(1)(d) be deleted.

· Condition B(1)(j) be deleted.

· Condition B(1)(k) be deleted.

· Condition B(1)(f) be deleted.

· Condition C6- (Stormwater disposal – Calculations) be retained.

Phil Sarin

Director Planning and Environment

Ashfield Council – Report to Ordinary Meeting held on Tuesday 27 August 2013 CM10.3

Subject DEVELOPMENT APPLICATION: 10.2012.269.1
380-384 LIVERPOOL ROAD ASHFIELD, 38 MILTON STREET ASHFIELD, 36 MILTON STREET ASHFIELD

File Ref DA 10.2012.269.1

Prepared by Philip North - Specialist Planner

Reasons Matter requires Council determination

Objective For Council to determine the application

Overview of Report

1.0 Description of Proposal

Pursuant to Clause 78A(1) of the Environmental Planning and Assessment (EP&A) Act 1979 (as amended) this application seeks Council’s consent for demolition of existing structures, the construction of a 6 storey commercial and residential flat building with ground floor retail, two levels of basement parking, lane widening and landscaping.

· Demolition of the existing structures on the site;

· Ancillary development including landscaping, garbage and common areas;

· Construction of a 6 storey mixed use building consisting of:

o Level 1: A retail premises fronting Liverpool Road and Milton Street, Residential lobbies, basement car park access, ancillary facilities, storage, plant rooms and landscaping (including to the RMS reserve).

o Levels 2-6: 45 dwellings (22 x one bedroom dwellings, 22 x two bedroom dwellings & 1 x three bedroom dwelling).

o 2 level underground car park consisting of:

Resident car parking spaces	52
Resident Accessible	6
Visitor	13
Visitor (accessible)	1
Retail car parking spaces	9
Retail Accessible	1
Loading space	1
Bicycle parking	5
Total Car Parking	83
Motorcycle parking	12
Bicycle parking	16
Loading/reversing space	1

Plans of the proposal are included at Attachment 1.

2.0 Summary Recommendation

The proposal exceeds a number of key planning controls applicable to the site and, in particular, significantly exceeds the FSR for the site under Ashfield LEP 1985. Notwithstanding this, the proposal is considered broadly consistent with Council’s planning intentions for the locality. Not only does the site specific Ashfield DCP, Part 4 allow an FSR bonus for the landscape upgrading of the RMS land along Milton Street and Liverpool Road, but the FSR proposed is generally consistent with that applicable under the Draft LEP (it exceeds it very slightly). In addition, the overall height complies with that which applies to the site under the Draft LEP. Given this, the proposal is considered generally acceptable but with some minor issues relating to the detailed design of the proposal. These matters could be readily addressed by further resolution of the design and, although too complex to be addressed by way of standard conditions of consent, can readily be dealt with by way of deferred commencement conditions. Given this, the development is recommended for deferred commencement approval.

Background

3.0 Application Details

Applicant : Dickson Rothschild Pty Ltd

Owner : Vranas Prosperities Pty Ltd

Value of work : $11,946,200

Lot/DP : LOT: 100 DP: 1016118

Date lodged : 24/12/2012

Date of last amendment : 26 July 2013

Application Type : Local

Construction Certificate : No

Section 94 Levy : Yes

4.0 Site and Surrounding Development

The subject site is located on the southern side of Liverpool Road on its south eastern corner with Milton Street in Ashfield. It consists of the following individual lots:

Street Address	Lot No.	Deposited Plan	Title System	Total Site Area (by title)
Part 380-382 Liverpool Road	Part 100	1016118	Torrens	Not specified
384 Liverpool Road	8	244344	Torrens	Not specified
Part 36 Milton Street	Part A	393265	Torrens	Not specified
Part 38 Milton Street	Part B	393265	Torrens	Not specified
TOTAL AREA				1778m²

The site area is 1778 square metres. Two existing residential flat buildings are currently located on 36 and 38 Milton Street while the remainder of the site is vacant. Surrounding development comprises low to medium density development apart from the Ashfield RSL Club immediately to the east and low scale commercial development at the intersection of Milton Street and Liverpool Road. Refer to Attachment 2 for a locality map.

5.0 Development History

Previous building and development applications submitted to Council for the subject site include:

380-382 Liverpool Road
No.	Date	Proposal	Determination
10.2002.176	14.02.2003	Mixed use development: Underground car park, commercial showroom & residential flat building.	Refused
10.1999.259	03.04.2000	Demolition of garage and remediation of site.	Approved
06.1968.6812	16.07.1968	Service bay.	Approved
6.1966.5971	04.11.1966	Car wash bay.	Approved

No records have been identified for the other lots which also comprise the site. A previous development application for a major residential development on the site was refused in 2003.

The subject application as initially lodged presented multiple non-compliances with Council’s key planning controls and represented a significant over-development of the site. Council advised the applicant of these issues by letter dated 28 February 2013. Several meetings followed to discuss the issues raised. In due course, an amended proposal dated 26 July 2013 was subsequently submitted to Council which, amongst other things, reduced the height of the proposal by one storey and reduced the floor space and number of dwellings from 63 to 45. This is the scheme which is the subject of this report.

Assessment

6.0 Zoning/Permissibility/Heritage

· The site is zoned 3(a) – General Business.

· Part of the lots which comprise the site but upon which no development is proposed 9(c) County Road Widening Res under the provisions of Ashfield LEP 1985.

The proposed works are permissible with Council consent.

7.0 Section 79C Assessment

The following is an assessment of the application with regard to the heads of consideration under the provisions of Section 79C of the EP&A Act.

7.1 The provisions of any Environmental Planning Instrument

7.1.1 Local Environmental Plans

Ashfield Local Environmental Plan 1985 (as amended)

It is considered that the proposal generally complies with the provisions of the Ashfield LEP 1985.

7.1.2 Regional Environmental Plans

Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005

It is considered that the carrying out of the proposed development is generally consistent with the objectives of the Plan and would not have any adverse effect on environmental heritage, the visual environment, the natural environment and open space and recreation facilities.

7.1.3 State Environmental Planning Policies

State Environmental Planning Policy No. 1 – Development Standards

Clause 17 of ALEP 1985 stipulates that the FSR applicable to the subject site is 1:1.

Clause 40(2) further permits an FSR bonus of 0.5:1 to the site provided that this floor space is for residential purposes only.

Given this, the FSR applicable to the proposed development under ALEP 1985 is 1.5:1.

The application, however, proposes an FSR of 2.1:1 and, as such, fails to comply with the applicable development standard.

An objection to this development standard has been submitted on behalf of the applicant arguing that strict compliance with this standard is unreasonable and unnecessary in this instance (Attachment 3). This objection has been lodged under the provisions of State Environmental Planning Policy (SEPP) No. 1 – Development Standards.

SEPP 1 Objection Assessment:
Details of variation:
No.	Issue	Details
1.	Development standard to be varied	The FSR established by clauses 17 & 40(2).
2.	Zone objectives	Whist there is no stated objective for the zone, the assumed objective is to: · To provide a mixture of compatible land uses. · To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling. · To enhance the viability, vitality and amenity of the Ashfield Town Centre as the primary business activity, employment and civic centre of the Ashfield local government area. · To encourage the orderly and efficient development of land through the consolidation of lots.
3.	Objectives of the development standard	Whilst there is no stated objective for the standard, the assumed objective is to: · To establish standards for the maximum development density and intensity of land use, · To ensure that buildings are compatible with the height, bulk and scale of the existing and desired future character of the locality, · To minimise adverse environmental impacts on: (i) heritage conservation areas and heritage items; (ii) protect the use or enjoyment of adjoining properties and the public domain, and · To maintain an appropriate visual relationship between new development and the existing character of areas or locations that are not undergoing, and are not likely to undergo, a substantial transformation.
4.	Numeric value of development standard	1.5:1
5.	Numeric value proposed	2.1:1
6.	Percentage variation sought	40%
7.	Is the objection well founded	Yes. Following examination under the Five Part Test (see below), it is considered that strict compliance with the standard would be unreasonable given that the proposal satisfies the objectives of the standard and of the zone notwithstanding the numerical non-compliance.
The Five Part Test:
Part No.	Test	Discussion	Assessment
1.	The objectives of the standard are achieved notwithstanding non-compliance with the standard.	The objectives of the standard are to produce a compatible scale with adjacent development and minimise adverse impacts upon adjacent site. The resultant built form and scale is consistent with nearby mixed use developments and results in an appropriate density for the locality while minimising adverse impacts upon adjacent properties.	Satisfactory.
2.	The underlying objective or purpose of the standard is not relevant to the development and therefore compliance is unnecessary.	The objective of the standard remains applicable.	Not applicable.
3.	The underlying object or purpose would be defeated or thwarted if compliance was required and therefore compliance is unreasonable.	Strict compliance with the standard would: · Result in a scale and form of building not consistent with existing development in the zone; · Result in a scale of development significantly lesser than envisaged than the desired future character of the locality (as evidenced by the Draft ALEP 2013 which is indicative of Council’s future planning intentions for the site); · Result in a scale of development less than provided for in cl. 2.6 of the site specific Ashfield West DCP (Part C4, Ashfield DCP 2007); and · Cl. 2.23 of ADCP, Part C4 allows for an FSR bonus to compensate for the landscape upgrading of the land affected by the RMS road widening. Consequently, the underlying purpose of the standard is likely to be thwarted by strict compliance therefore strict compliance is considered unreasonable.	Satisfactory.
4.	The development standard has been virtually abandoned or destroyed by the Council’s own actions in granting consents departing from the standard and hence compliance with the standard is unnecessary and unreasonable.	The adjoining site in the same zone at 378 Liverpool Road, received development consent through The Court for a development of 2.4:1 FSR proposed under Ashfield LEP 1985 which also applied an FSR of 1.5:1 to the site. It is thus considered that the standard has been compromised.	Satisfactory.
5.	The zoning of the particular land is unreasonable or inappropriate so that a development standard appropriate for that zoning is also unreasonable and unnecessary as it applies to the land and compliance with the standard would be unreasonable or unnecessary. That is, the particular parcel of land should not have been included in the particular zone.	The zoning is considered appropriate for the site and is reinforced by similar zoning proposed under the Draft ALEP 2013.	Not applicable.

State Environmental Planning Policy No. 55 – Remediation of land

The site is subject to SEPP 55 given that the previous use of 380-382 Liverpool Road was as a Caltex Service Station. A contamination and remediation validation assessment was undertaken by Otek Australia in September 2000 which concluded that:

“The site is considered to be suitably remediated in accordance with the site cleanup criteria (refer section 6 of this report).”

Section 6 includes:

“standard residential properties with gardens/accessible soils including schools, kindergartens and day care centres”.

Given this, it is considered that the site has been appropriately remediated for the proposed use and that no further conditions are required in this respect.

State Environmental Planning Policy No. 65 – Design Quality of Residential Flat Development

The proposal has been assessed by Council’s SEPP 65 assessor and is considered satisfactory subject to the application of conditions of consent. See report attached.

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

The proposal has been lodged with a BASIX certificate and is considered to satisfy the requirements of the SEPP.

State Environmental Planning Policy (Affordable Rental Housing) 2009

Two existing two storey residential flat buildings are to be demolished to make way for the proposed development. The applicant has advised that these buildings do not meet the criteria for classification as low rental dwellings under the SEPP and are currently unoccupied.

7.2 The provisions of any Draft Environmental Planning Instrument that is or has been placed on public exhibition and details of which have been notified to the consent authority.

Draft Ashfield Local Environmental Plan 2013 (Draft ALEP 2013) was placed on public exhibition on 27 June 2012 and endorsed by Council on 28 March 2013 for referral to the Department of Planning and Infrastructure under section 59 of the Environmental Planning and Assessment Act 1979 and is a matter for consideration. The following table summarises the compliance of the application with Draft ALEP 2013.

Draft Ashfield Local Environmental Plan 2013 Summary Compliance Table
Clause No.	Clause	Standard	Proposed	Complies
2.3	Zone objectives and land use table	Zone B4 Mixed Use	Residential flat building & retail premises	Yes
2.3	Zone objectives and land use table	Part SP2 Infrastructure – Classified Road	Landscaping, footpath & allowance for road widening	Yes
4.1	Minimum subdivision lot size	N/A	N/A	N/A
4.3(2)	Height of buildings	23m	21.8m	Yes
4.3(3)		Any part of the roof top structure of a building located within 3m below the highest point of the building shall not include floor space area.	Top 3m contains floor space	No
4.4	Floor space ratio	2:1	2.1:1	No

As demonstrated in the above table above table, the proposed development satisfies all the provisions of Draft ALEP 2013 except as follows:

· Cl. 4.3(3) Height: A portion of the top 3m of the development contains habitable floor area. This control is intended to allow space for plant and equipment. A variation is considered acceptable in this instance, however, given that plant and equipment is located in other parts of the development. Furthermore, the elements which occupy the top 3m of the building are located on the corner of the site where they assist in providing a better urban design outcome by articulating the corner of the road intersection.

· Cl. 4.4 FSR: It is considered that the application of an FSR bonus is warranted under the provisions of cl. 2.23 of Ashfield DCP 2007, Part C4 due to the landscape improvements to RMS land fronting Liverpool Road and Milton Street.

Notwithstanding these non-compliances, it is considered that the proposal is acceptable.

7.3 The provisions of any Development Control Plan.

The proposal has been considered against the provisions of the Ashfield Development Control Plan (DCP) 2007:

C1	ACCESS AND MOBILITY	Satisfactory. All commercial spaces and dwellings are accessible. All dwellings either comply with Universal Accessible Design principles or can be readily adapted to comply. A deferred commencement condition has been applied to the consent to ensure compliance.
C4	ASHFIELD WEST AREA	Satisfactory. The proposal generally complies with the content of this part.
	Cl 2.6 Height: max RL 36.3	Satisfactory. Although the highest part of the proposal exceeds the max height by 2.58m, this is only on the corner where the built form is used as an urban design feature to define an important road intersection. The remainder of the building has a maximum height of 35.27 which is about a metre less than the maximum height. Furthermore, the height is consistent with the 23m of the Draft ALEP 2013 which is representative of the desired future character of the area.
	Cl 2.23 Landscape	Satisfactory. The proposal includes satisfactory landscape upgrading, including street tree planting, of the land zoned for road widening.
	Cl 2.25 Deep soil areas for landscaping	Satisfactory. The proposal includes deep soil landscaping consisting of canopy size street trees in the areas required along the road verge.
	Cl 2.28 Consideration shall be given to placing power lines underground.	There are no overhead power lines along the frontages of the subject site. Although there are street lights connected by overhead cable to power lines on the opposite side of the road, these would in due course be replaced by the RMS during any road widening exercise.
	Cl 2.35 9(c) Milton lane to be widened to 6m from Milton St to Milton Lane South to allow two way traffic movement. East west pedestrian path along southern boundary of site.	Lane widening has been proposed but remains as part of the site with part of the basement constructed underneath. To provide for proper maintenance and allocation of responsibility, a deferred commencement condition of consent will require dedication of this land to Council and the redesign of the basement accordingly. A pedestrian path has been partially provided but is incomplete. Satisfactory resolution will be determined by condition of consent.
C11	PARKING	Satisfactory subject to conditions: Parking rates for multi-unit development within residential zones are as follows: · 1 space per unit; · 1 additional space for every 5 two bedroom units; · 1 additional space for every 2 three bedroom units; · 1 visitor space for every 5 units; · 1 car washing space. Parking rates for commercial/retail development are as follows: · 1 space per 40m²; · 1 delivery space. The resultant car parking requirement for the site is: · 50 resident spaces (incl. 5 accessible spaces); · 9 visitor spaces (incl. 1 accessible); · 1 residential car wash bay ; · 10 Commercial/retail spaces (incl. 1 accessible); · 1 delivery/loading space. TOTAL SPACES: 70 Spaces The proposal provides: · 58 residential spaces (incl. 6 accessible spaces); · 14 visitor spaces (incl. 1 accessible space); · 10 commercial spaces (incl. 1 accessible space); · 1 car wash bay; · 1 loading bay; · 5 bicycle spaces; and · TOTAL SPACES: 83 Spaces Assessment: The proposal provides 13 spaces in excess of the 69 car parking spaces required. If the basement is reduced in size to allow for the dedication of the widened laneway, these non-required spaces would be removed and only the required car parking provided.
C12	PUBLIC NOTIFICATION IN THE PLANNING PROCESS AND ALL ASPECTS OF LAND MANAGEMENT	The proposal was notified in accordance with this Part.

It is considered the application generally complies with the parts as indicated and ultimately achieves the aims and objectives of the Ashfield DCP.

7.4 Any matters prescribed by the regulations that apply to the land to which the development application relates.

These matters have been considered in the assessment of this application.

7.5 The likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts on the locality.

These matters have been considered as part of the assessment of the development application. It is considered that the proposed development will have no significant adverse environmental, social or economic impacts upon the locality.

7.6 The suitability of the site for the development

These matters have been considered as part of the assessment of the development application. There are no natural hazards or other site constraints that are likely to have a significant adverse impact upon the proposed development. The proposed development is considered suitable in the context of the locality.

7.7 Any submissions made in accordance with this Act or the regulations

The proposal was notified to all adjoining and nearby affected property owners and occupants, and Councillors from 7 January 2013 to 8 February 2013. As a result of the submission of amended plans reducing the size of the proposal, the application was renotified from 3 June 2013 to 26 June 2013.

7.7.1 Summary of submissions

11 submissions (Attachment 4) were received during the notification of the development application (7 in response to the notification of the initial proposal and 4 in response to the amended proposal):

Submissions: First Notification Period
M. Baird mariond.baird@gmail.com
Bowie (Feina You) 1/38 Milton Street, Ashfield NSW 2131
M. Eu 19/354 Liverpool Road, Ashfield NSW 2131
K. McPhail 90 Arthur Street, Croydon Park NSW 2133
J. Pinkstone 1/38 Milton Street, Ashfield NSW 2131
M. Rerceretnam 272 Holden Street, Ashbury NSW 2193
K. Totos 4/44-48 Milton Street, Ashfield NSW 2131

Submissions: First Notification Period

M. Baird

mariond.baird@gmail.com

Bowie (Feina You)

1/38 Milton Street, Ashfield NSW 2131

M. Eu

19/354 Liverpool Road, Ashfield NSW 2131

K. McPhail

90 Arthur Street, Croydon Park NSW 2133

J. Pinkstone

1/38 Milton Street, Ashfield NSW 2131

M. Rerceretnam

272 Holden Street, Ashbury NSW 2193

K. Totos

4/44-48 Milton Street, Ashfield NSW 2131

Submissions: Second Notification Period
P. Evangelou 32/403-409 Liverpool Road, Ashfield 2131
D. Lee 177 Norton Street, Ashfield NSW 2131
M. Rerceretnam 272 Holden Street, Ashbury NSW 2193
V. Upatising 205 Norton Street, Ashfield NSW 2131

Submissions: Second Notification Period

P. Evangelou

32/403-409 Liverpool Road, Ashfield 2131

D. Lee

177 Norton Street, Ashfield NSW 2131

M. Rerceretnam

272 Holden Street, Ashbury NSW 2193

V. Upatising

205 Norton Street, Ashfield NSW 2131

Submission Issue	Assessing Officer’s Comment
Traffic congestion on Norton Street.	Council’s traffic engineer considers that the traffic generation produced by the development is within the capacity of the local road network.
Excessive competition for parking on surrounding streets.	The proposal complies with Council’s car parking controls and is considered unlikely to result in additional on street parking.
Impact on parking of future developments.	It is not possible to assess the impacts of development proposals not yet lodged with Council.
Street setback will enhance Liverpool Road and Milton Street.	It is agreed that the zero front and side setbacks will facilitate a more urban, active and visually high quality streetscape.
Traffic from the development will be inclined to use the very narrow Milton Lane to exit to Norton Street.	The applicant has been required to amend the design to make it impossible to exit into the southern section of Milton Lane or enter the site from the south. This amendment should address this concern.
Cars accessing the development will do a rat run through local streets as they cannot enter the development heading north along Milton Street.	Council’s traffic engineer considers that the vehicle movements resulting from the development will not produce unwarranted local impacts.
More than 7 levels are excessive.	The applicant has reduced the height of the proposal to 6 levels.
The 63 units proposed should be decreased.	The applicant has reduced the number of units to 45.
Residents should be encouraged to use alternative forms of transport.	This is desirable but it outside the scope of the assessment process.
Council should consider the incorporation of Milton Lane into the bicycle lane network.	This may be desirable but it outside the scope of the assessment process.
The ground floor retail space should be occupied only by bakeries, cafes and restaurants with outdoor dining areas.	The ground floor retail/commercial floor area will be subject to subsequent development applications for specific uses.
Public parking should be available in the basement.	The parking provision complies with Council’s controls.
Concerns regarding traffic circulation patterns.	Council’s traffic engineer considers that the traffic generation and circulation patterns produced by the development are within the capacity of the local road network.
Extensive glazing exposed to westerly sun would reduce sustainability.	The proposal is accompanied by a BASIX certificate and is considered to be satisfactory in this respect.
Bicycle and motorcycle parking should be provided on site.	The proposal includes ample bicycle and motorcycle parking in the basement.
Parking is inadequate for 63 units.	The number of units has been reduced to 45 – the parking provision will remain consistent with Council’s controls and provides for in excess of one space per unit in total.
Council should approve fewer units.	The application has been amended to reduce the number of units from 63 to 45.
Unfair to present occupants of buildings requiring demolition to facilitate the development.	This is a matter of the leasing arrangements between the land lord and tenant of the property concerned.
The building appearance will create a “ghetto” appearance.	The applicant has amended the design which is now considered acceptable.
FSR of 2.58:1 is considered excessive.	Agreed. The applicant has reduced the FSR to 2.1:1.
Excess traffic.	The development has been reduced in size and the resultant traffic impacts are considered acceptable.
Traffic impacts upon lane.	The applicant has been required to amend the design to make it impossible to exit into the southern section of Milton Lane or enter the site from the south. This amendment should address this concern.
No further multi-level units required in Ashfield.	The use of the proposal is consistent with the applicable zoning for the site which permits multi-unit development on the site.
Too much vacant lettable area in Ashfield makes this development unnecessary.	This is a commercial decision for the developer and not a matter for the planning assessment.
Multi-unit developments tend to be overpopulated by overseas students who create a problem with rubbish on the street.	This is not a matter of consideration in the planning assessment.
Proximity to RSL is of concern.	No specific issues have been raised regarding this comment.
Inappropriate location for this type of development.	The site subject to planning controls which permit this use and a building of the overall height proposed.
Greed a motivating factor in an excessive scale development on this site.	It should be noted that the proposal has been reduced in height and density from an initial 61 units to 45.
Height and size of the development should be reduced.	Agreed. The height has been reduced by one level and the number of units reduced to 45.

7.8 The public interest

Matters of the public interest have been taken into consideration in the assessment of this application. The proposal is considered acceptable and warrants support.

8.0 Referrals

8.1 Internal

Internal Referrals
Officer	Comments	Support
Building Surveyor	Supported subject to conditions.	Yes
Traffic Engineer	Supported subject to conditions.	Yes
Tree Officer	Supported subject to conditions.	Yes
SEPP 65 Adviser	Supported subject to conditions.	Yes
Stormwater Engineer	Supported subject to deferred commencement conditions.	Yes

8.2 External

External Referrals
Agency	Comments	Support
RMS	Supported subject to conditions.	Yes

9.0 Building Code of Australia (BCA)

A Construction Certificate will be required to be applied for by condition of consent.

Financial Implications

Should the application be approved, it will be subject to the following section 94 development contributions:

Community Infrastructure Type		Contribution

Local Roads		$12,936.90

Local Public Transport Facilities		$29,050.83

Local Car Parking Facilities		$0.00

Local Open Space and Recreation Facilities		$544,534.18

Local Community Facilities		$29,847.33

Plan Preparation and Administration		$24,736.59

	TOTAL	$641,105.83

Other Staff Comments

See Section 8.1 of this report.

Public Consultation

See Section 7.7 of this report.

Conclusion

The application has been assessed in accordance with the provisions of the EP&A Act 1979 with all matters specified under Section 79C (1) Clauses (a) to (e) having been taken into consideration.

The objection to Clause 17 of the Ashfield Local Environmental Plan 1985, lodged pursuant to State Environmental Planning Policy No. 1, is considered to be well-founded and it is recommended that the objection be supported.

The proposal is acceptable with suitable amendments and is recommended for deferred commencement conditional approval.

ATTACHMENTS

Attachment 1 View	Plans of Proposal	19 Pages
Attachment 2 View	Locality Map	1 Page
Attachment 3 View	SEPP 65 Comments	13 Pages
Attachment 4 View	Conditions	21 Pages
Attachment 5 View	Submissions	18 Pages

RECOMMENDATION

A That the objection to Clause 17 of the Ashfield Local Environmental Plan 1985, lodged pursuant to State Environmental Planning Policy No. 1, is considered to be well-founded and it is recommended that the objection be supported; and

B. That Council as the consent authority pursuant to Clause 80(3) of the Environmental Planning and Assessment Act 1979 (as amended) grant deferred commencement consent to Development Application No. 10.2012.269 for the demolition of existing structures and construction of a six storey commercial and residential flat building with ground floor retail, two levels of basement car parking, lane widening and landscaping on part Lot 100, DP 1016118, Lot 8, DP 244344, part Lot A, DP 393265 and part Lot B, DP 393265, known as 380-384 Liverpool Road, Ashfield and 36-38 Milton Street, Ashfield, subject to conditions.

COMPLIANCE TABLE - ASHFIELD LOCAL ENVIRONMENTAL PLAN 1985

CLAUSE 2

Aims, objectives etc.

This plan aims to:

(a) promote the orderly and economic development of the local government area of Ashfield in a manner consistent with the need to protect the environment; and

(b) retain and enhance the identity of the Ashfield area derived from its role as an early residential suburb with local service industries and retail centres; and containing the first garden suburb of Haberfield (now listed as part of the National Estate).

Complies.

It is considered that the carrying out of the proposed development will generally meet the aims and objectives of Ashfield LEP 1985.

CLAUSE 10

Zoning

Complies.

The property is zoned 3(a) General Business and the proposal is permissible with Council consent.

CLAUSE 17

Floor space ratios

(1) In this clause “building” does not include a building used exclusively as a dwelling- house or residential flat building, but includes a building or buildings comprising 2 dwellings only on the same allotment.

(2) A person shall not, upon an allotment of land within a zone specified in Column I of the Table to this clause, erect a building with a floor space ratio that exceeds the ratio set out opposite the zone in Column II of that Table.

Does not comply.

Site Area = 1,778m²

Gross Floor Area = 3,734m²

Proposed FSR = 2.1:1

Maximum FSR = 1:1

With operation of cl. 40(2)(a)

Maximum FSR = 1.5:1

Refer to Section 7.1.3 of report for comments.

CLAUSE 25

Development of land within Zone No. 6(a)

Complies. Consideration has been given to the need of the proposed development on that land and its impact on the existing or likely future use of the land and the need to retain the land for its existing or future use.

CLAUSE 39B

Mixed development in commercial zones – generally:

A person may, with the consent of Council, carry out mixed development (being development for residential and commercial purposes) on the land to which this clause applies.

Complies.

Development for both residential and commercial purposes is proposed.

CLAUSE 40

Mixed development on certain land – floor space concessions

Does not comply.

Under this clause, an FSR of 1.5:1 applies to the site due to the residential component.

The application, however, proposes an FSR of 2.1:1 which does not comply with this standard. Refer to Section 7.1.3. of report for comments.

MODEL PROVISIONS

5(1) - Aesthetic appearance of proposed development from waterway, main or arterial road, railway, public reserve or land zoned for open space.

Considered acceptable.

5(2) – Car impacts

a) adequate exits and entrances so as not to endanger persons and vehicles using public roads

b) adequate car-parking

c) compliance with RTA representations

d) adequate area for loading, unloading and fuelling vehicles and for the picking up and setting down of passengers

Considered acceptable.

9 – Realignment of main roads

Will not conflict with any future road widening.

12 – Land used for commercial or industrial purposes

Considered acceptable.

13 – Off street loading, facilities, etc.

Considered acceptable.

17 – Residential flat buildings - setbacks

Boarding houses or residential flat buildings shall not be located closer than 9 m to a main or arterial road.

Not applicable in this context.

Phil Sarin

Director Planning and Environment

Ashfield Council – Report to Ordinary Meeting held on Tuesday 27 August 2013 CM10.4

Subject INVESTMENT REPORT JULY 2013

File Ref Financial Management/Report/Investment Report

Prepared by Myooran Vinayagamoorthy - Chief Financial Officer

Reasons Legislative Requirement

Objective To report the balance of investments as at 31July 2013

Overview of Report
In accordance with the requirements of Clause 212 of the Local Government (General) Regulation 2005, Council is provided with a listing of all investments made pursuant to Section 625 of the Local Government Act 1993 and held as at

31 July 2013.

Background

Clause 212 of the Local Government (General) Regulation 2005 requires that a report be presented to Council each month listing all investments with certification from the Responsible Accounting Officer.

Investment Balances

Council’s cash at bank and investments as at 31 July 2013 amounted to $22,473,328.85. It should be noted that the amount currently invested represents all of Council’s external and internal restrictions (i.e. grants, section 94 funds, loans, etc) as well as cash flow requirements.

The movement of cash and investments during the month of July 2013 is as follows:

Cash at Bank and Investments as at 30 June 2013 $23,124,640.50

Increase/ (Decrease) during the month of July 2013 $ (651,311.65)

Cash at Bank and Investments as at 31 July 2013 $22,473,328.85

Represented By:

Book Value of Investments $21,508,420.38

Cash at Bank $ 964,908.47

$22,473,328.85

In July 2013, the cash at bank and call deposits decreased by $651,311.65 representing a net cash outflow for maintaining Council’s activities during the month. This was mainly due to the mismatch in timing between the receipt of a large proportion of Councils income and expenditure being relatively constant.

Return on Investment

The following tables show the return on investment of Council’s funds over a range of periods. Fluctuations in monthly returns occur due to the quarterly receipt of CDO income and the annual adjustment of the fair value of the CDO.

Date	Monthly Return*	Quarterly Return*	Annual Return*	Two Years Return*	Three Years Return*
31/07/2013	3.74%	3.92%	4.17%	4.63%	5.12%
30/06/2013	4.22%	3.91%	4.26%	4.65%	5.01%
31/05/2013	3.79%	4.03%	4.47%	4.91%	5.64%
30/04/2013	3.69%	3.97%	4.58%	5.03%	5.68%
31/03/2013	4.62%	4.30%	4.63%	5.22%	5.73%
28/02/2013	3.62%	4.24%	4.70%	5.36%	5.73%
31/01/2013	4.70%	4.44%	4.89%	5.38%	5.79%
31/12/2012	4.45%	4.53%	4.91%	5.44%	5.80%
30/11/2012	4.16%	4.49%	5.06%	5.63%	5.82%
31/10/2012	5.03%	4.41%	5.09%	5.65%	5.82%
30/09/2012	4.30%	4.34%	5.03%	5.60%	5.77%
31/08/2012	3.94%	5.25%	5.21%	5.77%	5.79%
31/07/2012	4.90%	5.77%	5.27%	5.76%	5.75%

* Returns are calculated based on the closing monthly balance of cash & investments.

The average yield on the short term portfolio for July 2013 was 4.04% whilst the comparative benchmark yield for 90 days bank swap rates was 2.67%.

The interest on investments as at 31 July 2013 is $69,996.

The market value of Aphex Pacific Capital CDO as at 31 July 2013 as per the reports provided by Australia and New Zealand Group Limited is $199,470. This is an increase of $6,285 from the previous month market value.

Financial Implications

Nil

Other Staff Comments

Nil

Public Consultation

Nil

Conclusion

I certify that the investments have been made in accordance with the Local Government Act 1993 (as amended), the Local Government (General) Regulation 2005 and the Council’s Investment Policy adopted 23/08/2011 at the Budget and Operations Review Committee meeting.

ATTACHMENTS

Attachment 1 View	Investment Graph July 2013	1 Page
Attachment 2 View	ANZ CDO Report July 2013	10 Pages
Attachment 3 View	Interest Income Graph July2013	1 Page
Attachment 4 View	Investment Portfolio July 2013	2 Pages

RECOMMENDATION

That the investment report for July 2013 be received and noted.

Nellette Kettle

Director Corporate & Community Services

Ashfield Council – Report to Ordinary Meeting held on Tuesday 27 August 2013 CM10.12

Subject 116 WARATAH STREET HABERFIELD - SHARED PATH AND VEHICULAR ACCESS

File Ref DA 2012 000029

Prepared by Lew Oldfield - Senior Engineer Infrastructure Design and Traffic Services

Reasons To report the submission received following public exhibition of the proposed financial assistance towards the construction of the driveway at 116 Waratah St, Haberfield.

Objective Council consideration of public submissions

Overview of Report
Council has received three (3) submissions in accordance with S.356 of the Local Government Act relating to the proposed financial assistance towards the construction of the proposed shared path and vehicular access.

Background

Council at its meeting dated 28^th May 2013 considered a report from the Director Works and Infrastructure (refer to Attachment) and resolved:

“192/13

1/2 That council honour the commitment of the staff to bear the full cost of the widening and construction of the shared path and vehicular access apart from the layback and vehicular crossing at the Waratah Street frontage to the proposed extended path.

2/2 That, a public notice be prepared in accordance with S.356 of the Local Government Act, and a further report be submitted to Council at the closing of the 28 day exhibition period.”

A public notice was advertised on the 9^th July 2013 in the Ashfield Council section of the Inner West Courier with submission closing on 9^th August 2013. Public notices were also delivered to residents within approximately a three block radius.

Three submissions have been received and enclosed in the “confidential attachment”.

Many of the issues raised in the submissions refer to matters that would have been considered prior to the Development Approval being issued on the 10 April 2012. The development proposal had been exhibited and notices issued to neighbouring property owners requesting submissions before approval.

Thus this report addresses the submissions received by Council in relation to the public notice given under section 356 in accordance with Council resolution 192/13..

A summary of the submissions is given below:

1. No objection to work, but objecting to the process

Requested that the advertising should have been distributed to all ratepayers for comment as the proposal affects the entire budget reallocation.

Comment: Public notice has been advertised in accordance with Section 356 of the Local Government Act.

2. RMS should pay for the Work

Reference made to the original Dobroyd Parade construction by the RMS to create the City West Link Road.

Comment: There is an existing legal crossing on Dobroyd Rd to this property, therefore RMS has completed their obligation in this matter.

3. Funds should be directed to other pressing road works and facilities

The funds would be better spent in other locations.

Comments: This is a matter for Council.

4. The driveway will place pedestrians at risk

Comment: The area will be designated as a “shared zone” and comply with the RMS requirement for signage (no stopping, shared zone and no through road). This issue has been addressed within the approval DA conditions and construction is to comply with the RMS Technical Direction for shared zones.

5. Danger to pedestrian access to the adjoining residence.

The proposed driveway passes directly opposite the front gate of no.114 Waratah St putting the owners, grandchildren and visitors at risk.

Comment: As per (4) above.

6. Devaluing of No 116 Waratah Street

Having this driveway access directly in front of 116 Waratah Street will devalue the property given Haberfield is a highly desirable suburb.

Comment: Considered as part of the original DA.

7. Vehicles waiting on the footpath to enter Waratah Street

Vehicle would need to wait on the footpath until the Waratah Street vehicles move through the traffic signals thus polluting the air directly in front of no. 114 front door.

Comments: Matter considered as part of the original DA.

8. No objection if driveway moved towards Dobroyd Parade.

No objection to owners getting access to property but not as detailed. It was requested that the entry point be widened and located just beyond the lights at Waratah Street along Dobroyd Parade.

Comment: Matter considered as part of the original DA.

9. There will still be an existing Driveway to City West Link

Comment: It is proposed to remove the existing concrete gutter layback and driveway crossing.

10. The existing footpath can no longer be used by pedestrians.

With the driveway construction for vehicles pedestrians will need to “j” walk.

Comment: The proposal is to construct a shared zone in accordance with the RMS Technical directions and thus the area will be available for both pedestrians and vehicles in a controlled environment.

11. No public benefit or compensation.

Comment: This is a matter for Council.

Financial Implications

As outlined in the previous report approximately $30,000 would need to be allocated for the proposed works. This can be sourced from 2013/2014 Roads Program budget of $125,000.

Other Staff Comments

The Manager Development Services advises that the development proposal was notified to all adjoining and nearby affected property owners and occupants, the Haberfield Association and Councillors from 06 February 2012 until 23 February 2012. No submissions were received during the notification of the development application.

A deferred commencement consent was issued on 10 April 2012 and an operational consent was issued on 3 April 2013.

Public Consultation

Included in the report

Conclusion

The majority of the submission matters were addressed in the original Development Application process prior to the issuing of a consent and thus no further action should be taken on these issues.

ATTACHMENTS

Attachment 1	Submission letter 1 - *- CONFIDENTIAL ATTACHMENT - Confidential* - It is recommended that the Council resolve into closed session with the press and public excluded to allow consideration of this item, as provided for under Section 10A(2) (a) of the Local Government Act, 1993, on the grounds that personnel matters concerning particular individuals.	2 Pages
Attachment 2	Submission Letter 2 - *- CONFIDENTIAL ATTACHMENT - Confidential* - It is recommended that the Council resolve into closed session with the press and public excluded to allow consideration of this item, as provided for under Section 10A(2) (a) of the Local Government Act, 1993, on the grounds that personnel matters concerning particular individuals.	1 Page
Attachment 3	Submission letter 3 - *- CONFIDENTIAL ATTACHMENT - Confidential* - It is recommended that the Council resolve into closed session with the press and public excluded to allow consideration of this item, as provided for under Section 10A(2) (a) of the Local Government Act, 1993, on the grounds that personnel matters concerning particular individuals.	1 Page

RECOMMENDATION

1/2 That Council bear the full cost of the widening and construction of the shared path and vehicular access apart from the layback and vehicular crossing at the Waratah Street frontage to the proposed extended path.

2/2 That Council allocate $30,000 from the 2013/2014 Roads Program budget towards the construction of the shared Path and Vehicular Access.

Peter Cormican

Director Works & Infrastructure

Attachment 1 View	Due Diligence Checklist 2012-13	4 Pages
Attachment 2 View	2012-13 Draft Financial Statements	69 Pages

Attachment 1 View	4th Quarter Budget Review 2012-13	11 Pages
Attachment 2 View	Carryover List 2012-13	2 Pages

Attachment 1 View	Memorandum to Councillors and Designated Persons regarding Pecuniary Interest Returns	1 Page
Attachment 2 View	Register of Returns by Councillors and Designated Persons	1 Page